CONSEJO INTERNACIONAL DE TRATADOS INDIOS

Introduction:
The International Indian Treaty Council, IITC, is a Non-Governmental Organization with Special Consultative Status before ECOSOC. In this role the IITC respectfully makes certain recommendation to the Secretary General of the World Conference Against Racism (WCAR), the High Commissioner for Human Rights, for the draft WCAR Declaration and Programme of action, presently being drafted for consideration by the Second Prepcom, to be held in Geneva in January, 2001.

The paper was not intended to cover all developments within the UN system, with regard to the subject of racism and racial discrimination directed against indigenous peoples.  It is intended to demonstrate only briefly the manner in which the subject of racism toward indigenous peoples has been approached by the United Nations, in the context of the first two World Conferences on Racism (WCR), and the Treaty Monitoring Body of the Convention on the Elimination of all forms of Racial Discrimination (CERD) as a basis for the next WCAR Declaration and Programme of Action with regard to indigenous peoples.

This paper also includes some perspectives of United Nations experts on discrimination against indigenous peoples particularly Mme. Daes of the Working Group on Indigenous Populations (WGIP). The Annexes attached hereto are verbatim references to indigenous peoples by the first two World Conferences, CERD Committee recommendations and reports, and WGIP Chairwoman Mme. Daes' recommendations for the Conference.

It is important throughout this paper to keep in mind the definition of racial discrimination contained in the Convention on the Elimination of All Forms of Racial Discrimination:
 

In this Convention, the term “  racial discrimination”   shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. Part I, Article 1, CERD.

It is equally important that the WCAR'  s Declaration and Programme of Action recognize existing international standards as they have been applied to indigenous peoples, in order that its principles and programmes address the reality, the persistence and profundity, of racial discrimination and related intolerance directed against this highly vulnerable group.


I.  RECOMMENDATIONS FOR THE DECLARATION AND PROGRAMME OF ACTION:
In order to realistically address the gross and massive discrimination faced by indigeous peoples we believe it is necessary for the WCAR Declaration and Programme of Action to acknowledge certain basic principles with regard to indigenous peoples:

1/ The use of the term "peoples" in the WCAR Declaration and Programme of Action:
It is clear that in her recommendations for the WCAR (Annex 5 herein) the Chairwoman of the WGIP considers the failure of some member States to apply the term "peoples" to indigenous peoples as discriminatory, in her words, or racist in the observations of many indigenous representatives to UN fora. According to these States, the term applies to all peoples except indigenous peoples.

The IITC as well as may other indigenous NGOs have made interventions before the WGIP, the Commission and the Ad-Hoc Open Ended Intersessional Working Group on the Draft Declaration for the Rights of Indigenous Peoples, stating that this failure of recognition is itself racist in effect if not in intent. The distinction between all peoples and indigenous peoples, necessarily made in this persistent failure has the effect, if not the purpose, of nullifying the enjoyment of the rights of peoples by indigenous peoples.

The First WCR (Annex 1) did use the term "peoples" with relation to indigenous peoples, without any qualification. The second WCR referred to indigenous 'populations," although a title in its Programme of Action does refer to "indigenous populations and peoples."

The Second WCR (Annex 2) described the rights of indigenous populations, including: their right to maintain their traditional economic, social and cultural rights, to pursue their own economic, social and cultural development, and to use and further their own language. Both the First WCR and Second WCR recognized indigenous peoples' special relationship with the land and its natural resources and stated that they should not be taken from them. These are all human rights of peoples as described in article 1 of the International Covenant on Civil and Political Rights (ICCPR).

The CERD Committee also applies the term "peoples" without qualification in General Recommendation XXIII (Annex 3 herein) and has used the term in reviewing Australia's racially discriminatory laws and practices with reference to Australia's indigenous peoples.

As the treaty monitoring body of the ICCPR, the Human Rights Committee examined the application of article 1 of the covenant, the right of self determination, to the indigenous peoples in Canada.  As a matter of concern, the Committee, upon examination of Canada's compliance with the ICCPR with regard to Indigenous Peoples, urged the Canadian government to “  report adequately on the implementation of article 1 of the Covenant in its next periodic report.”

Noting that the situation of Indigenous Peoples remained the “most pressing human rights issue facing Canadians,” the Human Rights Committee emphasized in its Concluding Observations,     “  ... that the right of self determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth, and that they may not be deprived of their means of subsistence,” requirements of Article 1 of the Covenant.

The present Proposed United Nations Declaration on the Rights of Indigenous Peoples also uses the term without qualification throughout its present text.

Recommendation 1: that both the Declaration and Programme of Action of the WCAR specifically recognize that indigenous peoples are peoples and use the word, (and not use other words like "populations" or "people.") Further, that the Declaration specifically state that indigenous peoples are peoples in the full meaning of the term. The IITC also recommends that both the Declaration and Programme of Action urge the member States, as part of actions to be taken against racial discrimination on the international level, to adopt the Proposed United Nations Declaration on the rights of indigeous peoples without qualification or reservation with regard to the use of the world "peoples."

2/ The issue of land: Both the First and Second Conferences cited the special relationship between indigenous peoples to their land, and stressed that their land, land rights and natural resources should not be taken away from them. The First Conference stated this in its Declaration, and the Second Conference both in its declaration and Programme of Action.

Further, the CERD committee states in its general recommendation XXIII, that indigenous loss of lands to colonialists commercial companies and state enterprises is a violation of the CERD Convention.

The International Indian Treaty Council calls to the High Commissioner' s attention the Concluding observations of the Human Rights Committee on the Government of Canada's fourth periodic report on its observance of the International Covenant on Civil and Political Rights (ICCPR). (CCPR/C/79/add.105, 7 April 1999) (Annex 4 herein).  Therein, the CERD Committee found that Australian legislation facilitating the loss of Aboriginal title to their lands was directly violative of CERD, and an act of racial discrimination. It applied article 5(c) of the convention referring to political rights, to this Australian legislation.

Such a finding is consistent with both Mme. Daes report on indigenous peoples and their relationship to land (E/CN.4/Sub.2/1999/18). It is also consistent with Special Rapporteur Miguel Alfonso Martinez' report on Treaties, agreements and other constructive arrangements between indigenous peoples and states, and the States' failures to respect and observe their treaties concerning land with indigenous peoples (E/CN.4/Sub.2/19999/20). Indeed, in the her study on indigenous peoples' relationship to land, Mme. Daes cites numerous relevant standards concerning the recognition of indigenous peoples' rights to their lands, territories and resources, including: The Universal Declaration of Human Rights, article 7; CERD, article 5; CERD Committee Recommendation XXIII (51), ICCPR article 27; Human Rights Committee General Comment 23, Article 27; ILO Convention No. 169, articles 4, 7, 13, 14, 15, 16, 17, 18, and 19; Agenda 21, Chapter 26; World Bank Operational Directive 4.20, the United Nations draft declaration on the rights of indigenous peoples, articles 10, 12, 13, 25, 26, 27, 28, 29 and 30; and, the Proposed Inter-American declaration on the rights of indigenous peoples, articles VII,  XIII, and XVIII.

The IITC would again draw the High Commissioner'  s attention to the findings of both the CERD Committee, with regard to the loss of Aboriginal land title in Australia, and the recommendations to Canada by the Human Rights Committee, cited above and quoted in the Annex 4 herein. We would also draw the attention of the High Commissioner, as Secretary General of the WCAR, to the recent study of Mme. Daes and Mr. Eide of the WGIP, comparing the rights of indigenous peoples and minorities, both experts agreeing that the right to land and its natural resources is particularly a group right possessed by indigenous peoples (Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples E/CN.4/Sub.2/2000/10).

Recommendation 2: that both the Declaration and Program of Action for the WCAR lament the fact that the Declarations and Programmes of Action of previous conferences have not been observed.  WCAR should underscore that indigenous peoples continue to suffer massive losses of lands and territories. It should again establish that indigenous peoples have the right to own and control their lands and territories, and have the right not to be deprived of their natural resources and means of subsistence.

The Programme of Action should call upon the states to immediately take effective measures to protect indigenous peoples rights to their lands, territories and natural resources. The Programme of Action should also call for the respect for and protection of treaties and the demarcation and protection of indigenous lands and territories.


3/  Consultation leading toward Consent: The Second Conference recognized indigenous rights as established by existing international instruments, and generally followed article 27 of the ICCPR (Declaration) and ILO 169 (Programme of Action). It called upon the states to consult with indigenous peoples as regards proposals that concern them. It should be noted that ILO 169, in article 6, describes the consultation process required by the convention to be in good faith, and leading toward consent.

The CERD Committee has cited Australia's failure to ensure effective participation and secure informed consent of indigenous peoples violative of article 5(c) of the CERD convention.

Third Recommendation: that the Declaration and Programme of Action of the WCAR specifically note the requirements of existing international standards, particularly CERD General Recommendation XXIII and ILO 169, that indigenous peoples be consulted in all matters which may affect them directly, in consultations undertaken in good faith and in a form appropriate to the circumstance with the objective of achieving agreement or consent to the proposed measures. (See, Article 6, ILO Convention No. 169)

4/ The Right of Peoples to Peace:
There is no doubt that indigenous peoples, as all peoples, have the collective right to peace. World wide, indigenous lands are being militarized and indigenous peoples driven off their lands through force of violence and intimidation. The grave situation of the militarization of indigenous lands and territories, and its effects on their civil, political, economic, social and cultural rights have been well documented throughout the world. Most recently, Mme. Daes, in her report on her recent visit to Mexico, again documented this persistent evil. (Report prepared by Mrs. Erica-Irene A. Daes, Chairperson-Rapporteur of the Working Group on Indigenous Populations, on her visit to Mexico, (28 January-14 February 2000), E/CN.4/Sub.2/2000/CRP.1)

Fourth Recommendation: that the WCAR Declaration and Programme of Action call upon the states to immediately begin the process of de-militarization of Indigenous lands and territories. WCAR should call for an immediate cessation of impunity of military, paramilitary and police toward indigenous peoples.  Further, the Programme of Action should promote and encourage the formal establishment of traditional indigenous legal systems and administration of justice, to be encouraged and supported by the States. The Declaration and Programme of Action should call for transparency in legal processes, the independence of the judiciary, and the provision of adequate translation services for indigenous peoples within the judicial process. Above all, it should call for the immediate release of indigenous persons arbitrarily detained by many States.

II. RECOMMENDATIONS ON THE THEMES OF THE CONFERENCE:
It is clear that indigenous peoples suffer from all forms of racial discrimination and acts of racial discrimination throughout the world. In our final recommendations, below, we echo the eminent expert on indigenous peoples, Mme. Daes, and her recommendation to WCAR that it include a chapter on indigenous peoples in its Declaration and Programme of Action.

Below are some suggestions for the themes of the WCAR, in aspects of these themes that have emerged as particular problems for indigenous peoples with regard to racism, xenophobia and related intolerance.

Theme 1: Sources, causes, forms and contemporaneous manifestations of racism, racial discrimination and xenophobia.

Sources:
The High Commissioner of Human Rights, Mary Robinson, in her opening remarks to the Prepcom, described racism as the machine that drives the lamentable state of human rights with regard to indigenous peoples.

What has emerged as a particularly deadly form of discrimination against indigenous peoples is development and trade, in many manifestations, whether it be tourism, mining, deforestation, or simply the taking of lands used for cultural and physical subsistence, resulting in relocation, physical abuse, starvation and malnutrition of affected indigenous peoples. Transnational corporations, with the complicity of many States, continue to remove indigenous peoples from their traditional lands, destroy their environment, and force them by economic coercion if not brute force, to abandon their language, religion, cultures and ways of life.

Inherent in this drive to acquire indigenous lands and natural resources is a persistent devaluation of indigenous cultures, languages and religion in many States, and religious intolerance by these States and their dominant religions.

Causes:
It is clear to us all that the massive loss of indigenous lands and territories, irreparable damage to our environments, the loss of natural resources, intellectual property, biodiversity, identity, and culture in all of its manifestations, is driven by racial discrimination and greed.

Contemporary Forms:
Contemporary forms of racism and related intolerance are in many cases based upon the failure of States to recognize indigenous peoples' human rights and fundamental freedoms as peoples.

Contemporary forms of racial discrimination against indigenous peoples takes the form of lack of respect and observance of treaties and States forcibly "awarding" monetary compensation for lands, when the land has never been for sale. It takes the form of failures to demarcate and respect indigenous land title and ownership, and the genocide practiced or allowed by States, through the clearing of indigenous peoples from the land through mass assassinations and forced relocations, through neglect and disease. These gross and massive violations of human rights all lead to the facilitation of private ownership of indigenous lands and territories.

Contemporary forms of racial discrimination is the mis-characterization by the popular media and State educational systems, of indigenous peoples as backward and "uncivilized," and the failure of these institutions to portray indigenous peoples as living cultures with their own world view. It is found in the demeaning use of Indian "mascots" in the naming of sports teams and other popular characterizations by the media and States' institutions, most damaging to our children in State educational systems and textbooks.

Criminal Justice:
Contemporary forms of racial discrimination are frequently found in the disproportionately high incarceration rates of indigenous persons in many states, particularly of indigenous youth. It is found in religious and cultural discrimination against indigenous prisoners in the denial of access to spiritual leaders and ceremony. It is found, as the Special Rapporteur on religious intolerance found, in the forced hair cutting of indigenous inmates where long hair is a spiritual and cultural practice.

Economic, Social and Cultural Rights:
It is this failure to recognize the economic, social and cultural rights of indigenous peoples, as suggested by Mme. Daes and the CERD Committee, that leads to the forced assimilation of indigenous peoples into dominant societies.

Racism is found in the disproportionately high rates of disease of indigenous peoples and the lack of medical treatment, the disproportionate extreme poverty, and the lack of employment and resultant urbanization (with its resultant loss of culture and identity) of indigenous communities and peoples.

Racism is found in the grossly disproportionate malnutrition suffered by indigenous children in many States.

Xenophobia and related intolerance:
In an intersection with other forms of xenophobia and intolerance, contemporary forms of racism include the desecration and destruction of sacred sites both by private interests tolerated by the State, as well as State supported schemes. This desecration includes the violation of indigenous burial grounds as well as the theft and sale of indigenous funerary objects and artifacts.

Dominant religions and their adherents, tolerated if not promoted by the States, encourage racist policies and practices of discouraging indigenous religious practice, including the denial of access to and destruction of, sacred sites and burial grounds. States' policies and practices, and actions of adherents of dominant religions, tolerated if not promoted by the state, include the denial of access to sacred sites, harassment, beatings and even assassinations of spiritual leaders and indigenous traditional ceremonial practitioners.

This religious intolerance of traditional indigenous spiritual practice and beliefs is many times reflected by the State in direct or indirect policies meant for the assimilation of indigenous peoples into dominant cultures. Dominant religions and the media continue to portray indigenous religious practice as witchcraft, black magic, and superstition.

Environmental Racism:
Racism is found in the disproportionate adverse environmental effects of so-called development schemes of States and trans-national corporations that damage, many times irreparably, the ecosystems of indigenous lands and territories. This form of racism results in the loss of watershed on indigenous lands and territories, the poisoning of rivers and streams, deforestation and loss of wildlife and other forms of life. Indigenous lands and territories are being subjected at an alarming rate to destructive mining and mineral extraction practices that many times leading to the irreparable losses of land, biodiversity and life itself.

Environmental racism in many States has led to the loss of indigenous peoples' means of subsistence creating unacceptable living conditions on their lands, forcing many to migrate to urban areas, where they lose their way of life, their cultures and traditions.

Theme 2: Victims of racial discrimination xenophobia and related intolerance: There is no doubt that indigenous peoples are a group especially vulnerable to racial discrimination.  The World Conference should include a chapter on indigenous peoples in its Declaration and Programme of Action, as has been done in previous Conferences, and as suggested by the Chairwoman of the WGIP.

Theme 3: Measures of prevention, education and protection aimed at the eradication of racism, racial discrimination, xenophobia, and related intolerance: States have the primary responsibility of eradicating racial discrimination under the CERD convention. States must take urgent and effective measures to comply with their international human rights obligations including both civil and political rights, as well as economic, social and cultural rights.

Particular attention should be paid immediately to educational institutions and materials, that they reflect indigenous peoples, their world views and cultures, in all of their manifestations, as living and breathing cultures, and that the respect and protection thereof is important to the life and well being of the State.  These obligations already are a part of human rights instruments, particularly the Convention for the Elimination of all Forms of Racial Discrimination.

Particular attention should be paid and effective measures taken by States to end the disproportionate incarceration of indigenous persons, particularly indigenous youth, and to ensure access by indigenous inmates to traditional spiritual leaders and ceremonies, as enjoyed by non-indigenous inmate adherents of dominant religions.

The disproportionate poverty and failure of indigenous peoples' enjoyment of the right to development should be examined and effective measures adopted to better the economic life of indigenous communities. Recognition of the rights of indigenous peoples as peoples is essential to the enjoyment of the right to development, as is the recognition and protection of indigenous peoples' own vision of development.

The disproportionate deleterious impact on the lands, waters and ecosystems as well as the health of indigenous peoples caused by State and private development schemes should be recognized as environmental racism, and effective and immediate measures be taken to protect indigenous lands from this deadly abuse.

States also have an existing obligation to consult with indigenous peoples in all matters that affect them, in good faith consultations leading toward consent.

Theme 4: Provision of effective remedies, recourses, redress [compensation] and other measures at the national, regional and international levels:  

On the international level: the CERD committee, in commenting on Australia's report under the convention, found that monetary damages for the theft of Aboriginal children from their parents and communities, in order to further a policy of assimilation, was not in itself adequate compensation.

A major problem in adequate redress, recourse, and restitution with regard to indigenous peoples has been that these mechanisms have been primarily addressed as a problem of individual rights. Rarely, if ever, has restitution been examined with regard to peoples.  Mr. Theo Van Boven, in his classic study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, E/CN.4/Sub.2/1993/8, drew particular attention to indigenous peoples and their relationship to land and its resultant loss due to development and other causes.

“   Vital to the life and well being of indigenous peoples are land rights and rights relating to natural resources and the protection of the environment. Existing and emerging international law concerning the rights of indigenous peoples lays special emphasis on the protection of these collective rights and stipulates to the entitlement of indigenous peoples to compensation in the case of damage resulting from exploration and exploitation programmes pertaining to their lands.”    (para. 17)

The Van Boven principles, enunciated in this study, as well as subsequent studies on this issue have included the principle of restitution, the re-establishment of the situation that existed for the victim prior to the violation of human rights. (General Principle 8.)

In addition to whatever compensation or restitution an individual indigenous person may have, the theft of lands and territories and their ruination by so-called development and "progress" has led to the collective loss of culture and identity, the loss of language and religion, the loss of community.

For a peoples, these massive and collective violations of human rights cannot be adequately addressed by monetary compensation or restitution to individuals. In most cases, because of the internationally recognized spiritual relationship to the land, other lands of equal extent and "value" are also not adequate. States must return lands illegally obtained from indigenous peoples and take whatever measures are necessary to ensure that indigenous peoples are no longer dispossessed of their lands and territories. This includes immediate demarcation of indigenous lands, and effective measures to protect them.

Theme 5: Strategies to achieve full and effective equality, including international cooperation and enhancement of the United Nations and other international mechanisms in combating racism, racial discrimination, xenophobia and related intolerance, and follow-up.

Generally, the Programme of Action should contain provisions encouraging States to adopt the Convention on the Elimination of all Forms of Discrimination, and particularly, to make the declaration of Article 14, allowing for the filing of individual complaints.

Taking note of the International Decade of Indigenous Peoples, the creation of the Permanent Forum on Indigenous Issues, and other international initiatives, the Conference should recommend to the international community, particularly the United Nations as well as Regional Organizations, that they recognize indigenous peoples as peoples without qualification.

In this regard, the Conference should note the Commission's work on the Declaration on the rights of Indigenous Peoples, and recommend that it be accepted as proposed by the Sub-Commission, particularly with reference to the recognition of indigenous peoples as peoples.

The Conference should welcome the establishment of a Permanent Forum on Indigenous Issues at the ECOSOC level as called for by the Vienna Declaration and Programme of Action, and call upon ECOSOC and the President of ECOSOC, to implement it within the spirit of its creation, to establish a forum at the highest levels of the UN that will provide a space for authentic dialogue and partnership between indigenous peoples and the member States of the United Nations.

The Conference should recognize the persistent and profound racial discrimination directed against indigenous peoples all over the world, and the harms that it causes. The Conference should recommend that the United Nations Commission on Human Rights appoint a Rapporteur on indigenous peoples and their human rights in light of this deadly, persistent and pervasive reality in all parts of the world.

The Conference should recognize, in its Declaration and Programme of Action, indigenous peoples' right to peace. It should call upon the States to end the militarization of indigenous lands and the forced and often violent removal of indigenous peoples from their lands.

The Conference should also reiterate the international recognition of the spiritual relationship between indigenous peoples and their lands, and again stress that their land, land rights and natural resources should not be taken from them.

On the national level, the Conference should recommend that States take immediate and effective measures to demarcate traditional indigenous lands and territories, and adopt effective measures to protect them from any further encroachment, environmental damage or loss.

The Conference, as was done in the Second WCR, should call upon the states to endorse the right of indigenous peoples to maintain their traditional structures of economy and culture, including their language and religion.  States should be mindful of the dignity and worth of indigenous cultures, and take effective measures to end all discrimination against them and the practice and maintenance of their cultures, languages and religion.

States should be particularly mindful of the disproportionate poverty of indigenous peoples, and their right to maintain their traditional economic structures and means of subsistence. States should also examine their criminal justice systems and the highly disproportionate numbers of indigenous incarcerated persons, particularly juveniles, with the view to end any and all discriminatory laws, policies or practices that lead to these results.

The Conference particularly should recognize the injustice of environmental racism as a modern phenomenon, and the disproportionate environmental damage suffered by indigenous peoples and their lands as a result of State policies and practices or development schemes.


III.  RECOMMENDATIONS AS TO PREPARATION AND PROCEDURES FOR THE THIRD WORLD CONFERENCE AGAINST RACISM:
The Second World Conference recognized indigenous peoples as a group vulnerable to discrimination and violations of human rights. UNCED, the Rio Conference on the Environment and Development also described indigenous peoples as a vulnerable group. The CERD Committee in its General Recommendation XXIII also pays particular attention to the situation of racial discrimination in reports by States parties. Similarly, Mme. Daes and many other UN Rapporteurs, beginning with the Cobo Study, have described the persistent, gross and massive discrimination against indigenous peoples in many States.

As pointed out by Mme. Daes, the Prepcom in May of this year also recommended that the situation of indigenous peoples be taken into account at the Third World Conference.

Recommendation: that the Declaration and Programme of action cite the depth and persistence of racial discrimination against indigenous Peoples; and, that the WCAR:

1. Devote a chapter in both the Declaration and Programme of Action to indigenous peoples;

2. Invite indigenous representatives to address the plenary session;

3. Have the full and active participation of representatives of the world's indigenous peoples, including all seminars and regional meetings, and:

    a. set aside funds from the voluntary fund for the Decade     and actively seek funds so that indigenous peoples be     allowed to participate;

    b. allow indigenous peoples organizations to participate     without regard to consultative status;

    c. hold a seminar on indigenous peoples; and,

    d. conduct parallel activity at the Conference focusing on     indigenous peoples and measures to end discrimination     against them.


Dated: August 24, 2000


Annex 1.

DECLARATION AND PROGRAM OF ACTION, FIRST CONFERENCE TO COMBAT RACISM AND RACIAL DISCRIMINATION, Geneva, August 1978 (Sales No. E.79.XIV.2, chap. II):

DECLARATION:
21. The Conference endorses the right of indigenous peoples to maintain their traditional structure of economy and culture, including their own language, and also recognizes the special relationship to indigenous peoples to their land, and stresses that their land, land rights and natural resources should not be taken away from them.

PROGRAM OF ACTION:
A. Measures at the national level
8. The Conference urges states to recognize the following rights of indigenous peoples:
(a) To call themselves by their proper name and to express freely their ethnic, cultural and other characteristics;
(b) To have an official status and to form their own representatives organizations;
(c) To carry on within their areas of settlement their traditional structure of economy and way of life; this should in no way affect their right to participate freely on an equal basis in the economic, social and political development of the country;
(d) To maintain and use their own language, wherever possible, for administration and education;
(e) To receive education and information in their own language, with due regard to their needs as expressed by themselves, and to disseminate information regarding their needs and problems;

9. Funds should be made available by the authorities for investments, the uses of which are to be determined with the participation of the indigenous peoples themselves, in the economic life of the areas concerned, as well as in all spheres of cultural activity.

10. The Conference urges States to allow indigenous peoples within their territories to develop cultural and social links with their own kith and kin everywhere, with strict respect for the sovereignty, territorial integrity and political independence and non-interference in the internal affairs of those countries in which indigenous peoples live.

11. The Conference further urges States to facilitate and support the establishment of representative international organizations for indigenous peoples, through which they can share experiences and promote common interests.

The first World Conference to Combat Racism and Racial Discrimination of 1978 made no specific reference to recommended measures at the international or regional level with regard to indigenous peoples, focusing primarily on apartheid, with some references to minorities, women and migrants.  No specific recommendations were for support of indigenous victims of racism, racial discrimination or apartheid with regard to indigenous peoples.

Annex 2.

SECOND WORLD CONFERENCE TO COMBAT RACISM AND RACIAL DISCRIMINATION, Geneva, August 1983 (Sales No. E.83.XIV.4, chap.II):

DECLARATION
Preambular:
Recognizing that persons belonging to national, ethnic and other minorities are protected under the relevant international instruments, in particular under the International Convention on the Elimination of all forms of Racial Discrimination and the International Covenant on Civil and Political Rights, including article 27, and that continued vigilance is required to obviate any measures which discriminate against such groups; and that United Nations initiatives in respect of the rights of persons belonging to minorities and indigenous populations merit the widest support,

Recognizing the rights of indigenous populations as laid down in existing international instruments,

Solemnly reaffirms and declares that:
22. The rights of indigenous populations to maintain their traditional economic, social and cultural structures, to pursue their own economic, social and cultural development and to use and further development their own language, their special relationship to their land and its natural resources should not be taken away from them; the need for consultation with indigenous populations as regards proposals which concern them should be fully observed; the Conference welcomes the establishment of the (sic) United Nations Group on Indigenous Populations.

Programme of Action:
D. Measures for the promotion and protection of human rights of persons belonging to minority groups, indigenous populations and peoples and migrant workers who are subject to racial discrimination

34. With respect to indigenous populations, Governments should recognize and respect the basic rights of such populations:
(a)   To call themselves by their proper name and to express freely their     own identity;
(b)   To have official status and to form their own representative organizations
(c)    To maintain within the areas where they live their traditional economic structure and way of life; this should in no way affect     their right to participate freely on an equal basis in the economic, social and political development of the country;
(d)   To maintain and use their own language, wherever possible, for administration and education;
(e)   To enjoy freedom of religion or belief;
(f)    To have access to land and natural resources, particularly in the     light of the fundamental importance of rights to land and natural     resources to their traditions and aspirations;
(g)    To structure, conduct and control their own educational systems;

35. Indigenous populations should be free to manage their own affairs to the fullest practicable extent, and should be consulted in all matters concerning their interests and welfare. wherever possible through formal consultative arrangements. Special measures should be taken to remedy past dispossession, dispersal and systematic discrimination.

36. Funds should be made available by the national authorities for investments, the uses of which are to be determined with the participation of the indigenous populations themselves, in the economic life of the areas concerned, as well as in all spheres of cultural activity.

37. Governments should allow indigenous populations within their territories to develop cultural and social links with related or similar populations, taking into account the important role of international organizations or associations of indigenous populations, and with due respect for the sovereignty, territorial integrity and political independence of those countries in which indigenous populations live.

38. The Conference further urges States to facilitate and support the establishment of representative non-governmental international organizations for indigenous populations through which they can share experiences and promote common interests. The Sub-Commission on Prevention of Discrimination and Protection of Minorities should ensure that the urgent work being carried out by its Working Group on Indigenous Populations is continued so that the complex issues involved can be analyzed and appropriate measures taken at the international and national levels.

39. In view of the vulnerability of indigenous populations to discrimination and violations of their human rights, and of the gravity of the threat faced by indigenous populations in some parts of the world, Governments should pay close attention to situations in which the rights of indigenous populations may be violated or denied, in order to prevent such violations, which should be widely publicized as soon as they are detected.

Annex 3.

GENERAL RECOMMENDATIONS ADOPTED BY THE COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION, CERD/C/365 11 February 1999

General Recommendation XXIII on the rights of indigenous peoples (Fifty-first session, 1997) [Contained in document A/52/18]

1. In the practice of the Committee on the Elimination of Racial Discrimination, in particular in the examination of reports of States parties under article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination, the situation of indigenous peoples has always been a matter of close attention and concern. In this respect, the Committee has consistently affirmed that discrimination against indigenous peoples falls under the scope of the Convention and that all appropriate means must be taken to combat and eliminate such discrimination.

2. The Committee, noting that the General Assembly proclaimed the International Decade of the World's Indigenous Peoples commencing on 10 December 1994, reaffirms that the provision of the International Convention on the Elimination of All Forms of Racial Discrimination apply to indigenous peoples.

3. The Committee is conscious of the fact that  in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonialists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has and still is being jeopardized.

4. The Committee calls in particular upon the states to:
a. recognize and respect their indigenous distinct culture, history, language and way of life as an enrichment of the state's cultural identity and to promote its preservation;
b. ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity;
c. provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;
d. ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decision directly relating to their rights and interests are taken without their informed consent;
e. ensure that indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs and to preserve and to practice their languages.

5. The Committee especially calls upon States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right of restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible, take the form of lands and territories.

6. The Committee further calls upon States parties with indigenous peoples in their territories to include in their periodic reports full information on the situation of such peoples, taking into account all relevant provisions of the Convention.

ANNEX 4

DECISIONS BY THE CERD COMMITTEE
Concluding Observations, Australian report under article 9 of the Convention, CERD/C/56/Misc.42/rev.3

The CERD Committee made the following observations and recommendations:
1. Land: Found that 1998 Amendments to the Land Title Act reduced the protection of the rights of native title claimants, and called upon the state to ensure that protection of the rights of indigenous peoples not be reduced further.

Found that the failure of the state to ensure effective participation of indigenous peoples with regard to their land rights, and the securing of "informed consent" was violative of article 5(c) of the Convention, and General recommendation XXIII. (para. 9.)

2. Reparation and reconciliation: Found that the state had an obligation to ensure that a reconciliation process between the State and indigenous peoples on the basis of "robust engagement and effective leadership, embraced by both the indigenous population and the population at large." (para 12.)

Expressed concern over the failure of the Commonwealth Government to support a formal national apology and found inappropriate the provisions of monetary compensation for those forcibly and unjustifiable separated from their families.  The Committee recommended that the state party consider the need to address appropriately the extraordinary harm inflicted by these racially discriminatory practices of removing indigenous children from their families. (para. 13)

3. Criminal Justice: The Committee expressed "grave concern" over the disproportionate rate of incarceration of indigenous peoples, as compared with the general population, as well as the lack of appropriate interpretation services to indigenous peoples in the criminal process.

The Committee recommended that the State increase its efforts to seek effective measures to address socio-economic marginalization, the discriminatory approach to law enforcement, and the lack of sufficient diversionary programs. (para. 15.)

The Committee expressed concern about minimum sentencing schemes with regard to minor property offenses enacted in Western Australia and the Northern Territories, which appear to target offenses disproportionately committed by indigenous Australians, especially juveniles, leading to a racially discriminatory impact on their rate of incarceration. (para. 16.)

4. Enjoyment of Economic, Social and Cultural Rights: The Committee expressed serious concern over the continuing discrimination faced by indigenous Australians' economic, social and cultural rights, and the dramatic inequality still experienced by indigenous peoples in housing, health, employment and education. The Committee recommended that the State ensure that sufficient resources are allocated within the shortest possible time for the eradication of these disparities. (para. 18.)

ANNEX 5

RECOMMENDATIONS BY THE CHAIRPERSON RAPPORTEUR, WORKING GROUP ON INDIGENOUS POPULATIONS, Mm. Erica Irene A. Daes, (Letter addressed to the Chairman of the Preparatory Committee on the World Conference on Racism, dated 1.5.2000, no UN number assigned.)

"I have had the possibility of listening to the concerns of indigenous peoples over 16 years as Chairperson-Rapporteur of the Working Group on Indigenous Populations. I have also been afforded many opportunities to visit indigenous communities and learned at first-hand their needs. Furthermore, it has been my honour to serve as Special Rapportuer, first on the study on the protection of  indigenous heritage and presently on the study of on indigenous peoples and their relationship to land.

"These experiences have only confirmed to me that indigenous peoples in many countries continue to be victims of racism and discrimination. Indeed, I believe that discrimination and racism are at the heart of the indigenous issue, whether this is expressed in the reluctance of many States to recognize the right of self-determination of indigenous peoples - a right recognized all other peoples, or whether it is expressed in the absurd denial of the use of the term "indigenous peoples' contradicting all logic of language and pretending in so doing that the different indigenous peoples of the world do not have a language, history or culture unique to them, or whether it is the persistence in the dominant world that indigenous peoples do not have their own log established and dynamic system of knowledge or law."

Recommendations:
    1. That the World Conference on Racism have the full and active     participation of representative of the world's indigenous peoples,     including the regional and satellite seminars and meetings, without     regard to consultative status;
    2. That the World Conference should invite indigenous     representatives to address the plenary session;
    3. That the office of the High Commissioner hold a seminar on     indigenous peoples and the administration of justice, in order to     inform and make suggestions to the World Conference;
    4. That parallel activity be held at the same time as the World     Conference focusing on indigenous peoples and measures being     taken to end discrimination;
    5. That funds be set aside by the Voluntary Fund for the     International Decade to assist the parallel activity as well as the     participation of indigenous peoples at the World Conference;
    6. That a chapter in both the Declaration and Programme of     Action be dedicated to indigenous peoples, in order to respect     the recommendation of the Commission in resolution 2000/..     adopted April 25, 2000, that the situation of indigenous peoples     be taken into account at the World Conference;

7. That the Conference recognize that indigenous peoples are peoples, and end once and for all time the discriminatory practice of using such terms as indigenous populations or indigenous people when such people are referred to collectively.

8. That the Working Group, in consultation with indigenous peoples, make practical proposals with regard to possible activities to be undertaken by Governments, the UN System , NGOs and civil society including schools and higher education establishments, the media, the private sector and others with a view to submitting these suggestions forward in the preparatory process.