Distr.
                                                RESTRICTED
                                                E/CN.4/1998/WG.15/CRP.l
                                                4 December 1998

                                                Original: ENGLISH
 

COMMISSION ON HUMAN RIGHTS
Fifty-fifth session
Working Group established in accordance with Commission
on Human Rights resolution 1995/32
of 3 March 1995
Fourth session
Geneva, 30 Novernber - 11 December 1998
 

                              INDIGENOUS ISSUES
 

    Draft report of the working group established in accordance with
               Commission on Human Rights resolution 1995/32
 

               Chairperson-Rapporteur: Mr. José Urrutia (Peru)
 

                                INTRODUCTION

   1.    By resolution 1995/32 of 3 March 1995 the Commission on Human Rights decided to establish an open-ended inter-sessional working group of the Comission on Human Rights with the sole purpose of elaborating a draft  declaration, considering the draft contained in the annex to resolution 1994/45 of 26 August 1994 of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities entitled "Draft United Nations declaration on the rights of indigenous peoples" for consideration and adoption by the General Assembly within the International Decade of the World's  indigenous People. This decision was endorsed by the Economic and Social Council in its resolution ?995/32 of 25 july 1995.

 2.  The working group held ...... normal meetings and ......... informal plenary meetings during the period 30 November-11 December 1998. A total of.... people attended the meetings of the working group, including ... Governments and .......indigenous and non-governmental organizations.

3.      This report contains a record of the general debate. The debate  which took place in the informal plenary meetings is not reflected in this report.

 4.     This report is solely a record of the general debate and does not imply acceptance of the usage of either the expression "indigenous peoples" or Indigenous people". In this report both terms are used without prejudice to the positions of particular delegations, where divergences of approach remain.

 5. The working group was opened by a representative of the Office of the  United Nations High Commissioner for Human Rights.

 6. At its first meeting, the working group unanimously re-elected Mr.  José Urrutia (Peru) as its Chairperson-Rapporteur.
 

7. .    The working group had before it the following document:        Provisional agenda (E/CN.4/1998/WG.15/1);
       Draft report of the working group established in accordance with
       Commission on Human Rights resolution 1995/32 of 3 March 1995 (E/CN.4/1998/WG.15/CRP.1-2);

       Provisional list of participants (E/CN.4/1998/WG.15/Misc.l)

8.     The following background documents were made available to the working group:
      Technical review of the United Nations draft declaration on the rights of indigenous peoples: note by the Secretariat
       (E/CN.4/Sub.2/1994/2);

       Draft United Nations declaration on the rights of indigenous peoples  (E/CN.4/sub.2/1994/56);

       Sub-Commission on Prevention of Discrimination and Protection of  Minorities resolution 1994/45 on the draft United Nations declaration   on the rights of indigenous peoples;

       Commission on Human Rights resolution 1995/32 on the establishment of a working group of the Commission on Human Rights to elaborate a draft declaration;

       Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on its first, second and third sessions (E/CN.4/1996/84; E/CN.4/1997/102;  E/CN.4/1998/106; and E/CN.4/1998/106/Corr.1).

Participation in the session
................
...............
  

                           ORGANIZATION OF WORK

15.  In his opening statement, at the first meeting, the Chairperson- Rapporteur said that  the main purpose of the session was to continue moving forward. He expressed  the hope that the working group would make every effort in order to achieve agreement on specific points and be able to pressent tangible results to the fifty-fifth session of the Commission on Human Rights. He also said that it was necessary to continue the dialogue and consultation  between governments and indigenous representatives.

16. At the first meeting the provisional agenda (E/CN.4/1998/WG.15/1) was adopted.

17. The Chairperson-Rapporteur proposed that the session begin with a general debate in a formal plenary meeting, in order to give the opportunity to make general comments to those delegations which participated for the first time in the session and to those delegations which might wish to add further comments on the draft declaration. Otherwise, formal plenary sessions should be limited to the adoption of articles agreed upon by consensus in informal plenary meetings. We proposed then that  the working group continue with an exchange of views on the principales underlying articles 1, 2, 12, 13, 14, 44 and 45 with a view to determining if  there was a consensus thereon so that their adoption could be considered at a later stage. This exchange of views would be followed by a general debate on the fundamental principles contained in the draft declaration, such as the right of self-determination and its scope. finally, he proposed that the working group consider articles 15, 16, 17 and 18 on which there had already been a wide consensus at the third session,  with a view to reaching final agreement. With regard to speaking time, the Chairperson-Rapporteur proposed that participants would be allowed five minutes each, and called upon the participants to make good use of  their speaking time to discuss specific articles.

18.  The proposals for the organization of work were approved by the  working group.
 

                             GENERAL DEBATE

19.     Indigenous observer delegations stated that they regarded the draft declaration as being minimum standards for the promotion and protection of   the fundamental rights and freedoms of indigenous peoples, and called upon the working group to recommend the immediate adoption of the draft declaration in its present form. They affirmed that the right of self-
determination, as contained in article 3, was the fundamental underlying principle of the draft declaration. Concern was raised by a number of indigenous delegations that some Governments wanted to portray parts of the draft declaration as controversial.

 20. The cbserver for the Indian Movement "Tupaj Amaru" stated that, while  considering the draft declaration, special attention should be given to such notions as the recognition of the right of indigenous peoples to define themselves as peoples, the principle of self-determination, the exercise of collective ancestral ownership of land, the sovereignty over natural resources, the legal protection of cultural and intellectual property.
                                  -4-

21. The observer for the Navajo Nation stated that the fundamental principle underlying the draft declaration was the right of self- determination of all peoples, including indigenous peoples. He said that many Governments objected to the recognition of the right of self- determination due to fear that it would imply a right to succession from existing States. Moreover, he stated that this fear was misguided and that the exercise of the right of self-determination did not threaten the security of States. We urged Governments to consider the right of self- determination as providing the.legal means to protect and promote the human
rights of all peoples.
 

22.  The observer for the Comisión Juridica para el Autodesarrollo de los Pueblos Originarios Andinos CAPAJ, referred to a meeting held in April 1998 by indigenous organizations in the Andean region to discuss the draft declaration. The meeting was of the view that the draft declaration was compatible with the domestic legislation of many countries of the region. He expressed the hope that the draft declaration would become soon a reality.

 23.    The observer for the Aboriginal and Torres Strait Islanders Commission said that during the discussion participants should take into account three principles, namely the principles of equality, non- discrirnination and absolute prohibition of racial discrimination. He expressed readiness to engage in open dialogue in line with these principles.

 24.     The observer for the Indigenous World Association reiterated the need to put emphasis on the right of self-determination and noted that indigenous peoples should enjoy all basic human rights, such as the rights to be free, to be able to determine their own culture, their own religion, their own citizenship and their own form of government; this constituted
the inalienable right of indigenous Peoples to be themselves.

  25.    The observer for the International Work Group on Indigenous Affairs  underlined the importance of collective rights contained in the draft declaration and stated that existing international human rights instruments did not adequately address the needs and rights of indigenous peoples; therefore, it was necessary to adopt the draft declaration as soon as possible. He urged Governments to demonstrate the political will necessary for the adoption of the draft declaration in its current form.

 26.     The observer for the Asian Cul:tural Forum on Development said that if Governments wanted the draft declaration to keep its universal character they should not insist on a definition of the term "indigenous peoples"

 27.     The observer for the Ainu Association of Sapporo stated that last  year only two articles were adopted and expressed concern that at this  speed it would take decades to adopt the whole text.

 28.    The observer for the Indian Law Resource Centre expressed concern at the position of the delegation of the United States of America on the right of self-determination and stated that such a rejection of the indigenous peoples' right of self-determination was based on a narrow-minded interpretation of the concept. The observer for the Navajo Nation expressed similar views and concerns with respect to the position of the United States of America.
 

  29.     The observer for the Inuit Circumpolar Conference reiterated support  for the draft declaration in its current form which, if adopted, would  guarantee the political, social, economic and cultural of indigenous   peoples and lead to a path of peace based on mutual respect. He also   highlighted the importance of the right of self-determination,

                                  -5-

30. The observer for the Saami Council stated that the draft declaration guaranteed the basic rights and fundamental political and legal rights of indigenous peoples and that it constituted a major breakthrough principally because it underlined the principle of equality for indigenous peoples; t:his had usually been denied on the grounds of discrimination. He further stated that although the right of self-determination of indigenous peoples could be exercised through various mechanisms and arrangements within the framework of the State concerned, it could not be qualified.

 31.    The observer for the International Centre for Human Rights and Democratic Development referred to article 3 on the right of self- determination and to the unnecessary fear of Governments that a recognition of this right would lead to secession.

 32.   The observer for the International Indian Treaty Council expressed concern over the statement made by the representative of the United States of America as far as the term "indigenous peoples" is concerned. She defined this as an attempt to redefine the scope of the draft declaration, which she said, was unacceptable.

33.  The observer for the Grand Council of the Crees stated that he shared the views expressed by the observer  for the International Indian Treaty Council. He welcomed the statement made by the representative of Denmark which recognized that human rights were universal and must be guaranteed to everyone without discrimination and be observed by all countries. He
further stressed that the draft declaration did not mean to threaten the sovereignty, wealth or territorial integrity of States.

 34,    The observer for the Asemblea Nacional Indigena Plural para la Autonomia expressed concern at attempts by some Governments to delay the adoption of the draft declaration. It was also stated that a recognition of the right of self-determination for indigenous peoples would not affect the sovereignty of States.

35.    The observer for the Association of the Shor people drew the attention of the working group to the fact that the living conditions of indigenous peoples in the Russian Federation had worsened and that many of them were about  to become extinct because they did not have a legal protection for their rights. In this regard, he considered adoption of the draft declaration without changes a matter of urgency, as the document contained the minimum standards for the protection of the rights of
indigenous peoples.

:36. The Lumad Mindanaw Peoples Federation called for the adoption cf the draft declaration without changes.

 37.    The observer for the Indian Law Resource Centre stressed the importance of the dynamics and principles underlying the draft declaration and said that it would be counterproductive to consider each article without taking into account the proper context. She also highlighted the interactive nature of the underlying principles and rights stipulated in the draft declaration.

 38.  The observer for the Nepal Indigenous Peoples Development and Information Service drew the attention of the working group to the importance of the recognition of the existence of indigenous peoples and their right to self-determination,

 39.  The observer for the international Organization of Indigenous  Resource Development welcomed the visit of the United Nations High  Commissioner for Human Rights to his community in Canada during the  previous week. Indigenous leaders from the four Cree Nations of Hoblema

                                  -6-
 had discussed the draft declaration as well as other international issues with the High Commissioner.

 40.    The representative of the United States of America stated that her delegation considered several issues to be fundamental when negotiating the adoption of the draft declaration: a) Process - the new declaration should
build upon and be consistent with the principles established in basic human right instruments, such as the Universal Declaration, the Covenants and the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. She was of the view that it should not be necessary to convert aspirations or objectives into "rights" in order to draw attention to them; b) Universality - -the working group should address the scope of application of the draft declaration. She
stated that although the draft declaration referred consistently to the term "indigenous peoples", it did not define it, and that it would seem important to have a universally-accepted definition of the term "indigenous peoples"; c) Local. realities - a number of formulations in the draft declaration would discourage,  not encourage, support of key States, notably those with significant indigenous populations. She believed that one way to help ensure broad international support would be to include, in the context of the principle of universality, a provision in the declaration recognizing that different Governments and indigenous populations might take local realities into account when applying the draft declaration; d) Autonomy - she stated that the United States of America did not believe that international law accorded indigenous groups everywhere the right of self-determination, which had been interpreted to include the right to separate or secede from the rest of the society; e) Individual rights - since international  law, with few exceptions, promoted and protected the rights of individuals, as opposed to groups, it would be confusing to state that international law accorded certain rights to "indigenous peoples" as such. Finally, she stated that for these reasons, her Government urged the working group to follow the approach taken by the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, wich referred to "persons belonging to minorities" rather than "minorities", and provided in article 3.1 that "persons belonging to minorities may exercise their rights,  including those as set forth in this declaration, individually as well as in community with other members of their group, without any discrimination".

41.  The. representative of Canada stated that further consultations should be held among participants in order to achieve progress and that discussion should focus on  articles 15 to 18 with a view to adoption at first reading, should sufficient consensus exist.

 42.  The observer for New Zealand said that the task of finding common ground would  require all the participants to engage fully and constructively in a real dialogue and considered it important to focus on certain articles such as 15, 16, 17 and 18.

43.  The observer for Australia said that it was important for the working group to make substantive progress during the current session, to the broader international community. This would include the provisional acceptance of the text of further articles and require compromise and creative engagement on the part of all parties. Progress was made last year with regard to articles 15 to 18, and it was now necessary to agree on these articles and to begin work on other articles. He also stated that the working group should continue to discuss issues central to the draft declaration, such as the issue of scope and the concept of self-
determination.

44.  The representative of Ecuador stated that his Government was committed to promoting the rights of indigenous peoples through constructive contribution in the realization of the draft declaration.

45.  The observer for Denmark stated that in considering the draft declaration it was important to take into account the many different interests involved and that every effort should be made to break new ground with a view to protecting and securing the right of indigenous peoples who were particularly vulnerable and facing great problems and threats to their cultures and livelihood. It should be emphasized that no matter how long, difficult and lengthy the process might be, it could not be completed without the full participation of those concerned, namely the indigenous peoples. She also said that the building of confidence and mutual understanding between indigenous peoples and States, although less tangible, were also important criteria for success in the longer run.

 46.  The representative of China considered the draft declaration a good basis for discussion and appealed to all parties to demonstrate goodwill and flexibility in order to make further progress. However, she was of the view  that the draft declaration should have a well defined scope, and expressed the hope that indigenous groups would fully participate in the discussion.

 47.   The representative of Norway stated that the working group should make further efforts towards the adoption of articles 15 to 18 during the current session.

48.  The representative of the Russian Federation stressed the need for the working group to continue to work on the text. He stated that his Government was ready to participate and support the work of the working 

49.  The representative of Argentina was of the view that human rights by nature were individual and expressed concern that collective rights might be exercised in a manner that would be detrimental to the enjoyment of invitual rights. Nevertheless, it maintained that the collective stake- holding of rights was not denied, such as land rights.
-----