(WGIP Report 98)

II. REVIEW OF DEVELOPMENTS PERTAINING TO THE PROMOTION AND PROTECTION OF HUMAN RIGHT
AND FUNDAMENTAL FREEDOMS OF INDIGENOUS PEOPLE

A. General statements

The World Intellectual Property Organization (WIPO) said that it has recently embarked upon a programme of activities relating to the identification and exploration of new approaches to the use of the intellectual property system by the world 's indigenous peoples, local communities and other holders, custodians and creators of traditional knowledge, innovations and culture. This new programme of activities is being carried out primarily by the new Global Intellectual Property Issues Division. The Division has as part of its duties the exploration and investigation of the needs and expectations of potential new beneficiaries of intellectual
property. Indigenous peoples, local communities and holders and creators of traditional knowledge have been identified by WIPO as the first group of potential new beneficiaries. lnmediately prior to the sixteenth session of the Working Group on Indigenous Populations, WIPO organized, the first-ever WIPO Roundtable on Intellectual Property and lndigenous Peoples. On behalf of WIPO he thanked and congratulated the Chairperson Rapporteur Prof. Erica-Irene A. Daes, for her opening address to the Roundtable and her active participationin its work. Her work has greatly contributed to its successful outcome. WIPO' srepresentative said he is hopeful that WIPO may organize a Roundtable on a regular, even annual, basis. It was said that the Roundtable is only one of the activities related to new beneficiaries which will be undertaken under WIPO's Programme and Budget for the 1998-1999 biennium. Other activities includes a series of fact-finding missions to parts of the world with significant indigenous populations or significant bodies of traditional knowledge, pilot projects related to the documentation of traditional knowledge formations, and exploration of
the ways in which information technology may serve as a tool for protection and conservation of traditional knowledge.

Tbe Secretariat of the United Nations Convention on Biological Diversity characterized the Convention on Biological Diversity (CBD) as one of the most important legal instruments for the advancement of indigenous peoples' rights over the natural wealth of their territories and over the associated knowledge of their communities. He said that the Convention is a framework agreement, meaning that despite being legally binding, it has few mcchanisms for implementation and none for enforcement. Governments are expected to meet their obligations through national programmes and legislation, but there is no international body that can force them to do so. He informed about an open-ended ad hoc inter-sessional working group of the Conference of Parties (COP) on traditional knowledge and biological diversity, held in Madrid, Spain in November 1998. He said that this Workshop produced
recommendations to COP pertaining to (1) a programme of work related to the implementation of Article 8 (j) of CBD and (2) and institutional structure that would oversee that work. He also informed the Working Group about Decision 4/9 of COP4 meeting held in Bratislava, Slovakia in May 1998, by which the Open ended Ad hoc Working Group was established to address the
implementation of Article 8 (j)and related provisions of the Convention.

The International Labour Office gave a brief summary of the developments in the International Labour Organization (ILO) concerning indigenous and tribal peoples. It was said that ratifications for ILO Convention No. 169 on Indigenous and Tribal Peoples continue to be received, with ratifications from Ecuador, Fiji and the Netherlands during the past year.This makes a total of 13 ratifications, and a number of others are under active consideration. The International Labour Office also informed the Working Group about its DANIDA- financed technical cooperation project aimed at promoting ILO policy on indigenous and tribal peoples, which began operations in 1996. The Project will continue until 2000, subject to renewal, and is conceptualized within the framework of the International Decade of the WorId's Indigenous People (1995-2004). The Project is managed by two indigenous and tribal
persons, with emphasis on Asia and Southern Africa. Furthermore, the International labour Office informed about its INDISCO Programme, which began operations in 1993, under the ILO/DANIDA programme for cooperative development in rural areas. The aim of this Programme is to support self-reliance of indigenous and tribal communitíes through cooperatives and other self-help organizations. Moreover, the International Labour Office in collaboration with the Department of Native Studies of the University of Lethbridge of Alberta, Canada have published the manual "Effective Negotiation by Indigenous Peoples." The manual provides guidance on strategies and tactics for effective negotiation by indigenous and tribal peoples in development-related projects. In addition, the International Labour Office published a Guide to Convention No. 169 explaining the scope and content of
tbe convention and its policy and legal implications.

The representative of the United Nations High Commissioner for Refugees (UNHCR) informed the Working Group about its work on indigenous peoples. He said that UNHCR seeks to address the particular concerns of indigenous peoples during three typical phases of refugee displacement: (1) root causes of refugee displacement; (2) their specific needs during the period of asylum; and (3) their special characteristics in the search for lasting solutions to refugee displacement. Moreover, that UNHCR has prepared a discussion paper on indigenous refugees as part of its elaboration on ways of improving UNHCR's policy on indigenous refugees.

The Observer of Canada informed the Working Group about the "Gathering Strength - Canada's Aboriginal Action Plan" which was released in January 1998. The Government released tbe Action Plan as its response to the Royal Commission's report. The Gathering Strengtb action plan is framed around four key objectives: (1) to renew the partnerships by brinine about fundamental change in Canada's relationship with Aboriginal people, based on the principles of mutual respect and recognition, responsibility and sharing; (2) to strengthen Aboriginal governance so that communities have the tools to implement self-governrnent; (3) to design a new fiscal relationship that provides a stable flow of funds in support of transparent and accountable community development; and (4) to support strong, healthy Aboriginal communities, fueled by economic development and supported by a solid infrastructure of institutions and services. The Government of Canada has also through the Statement of Reconciliation expressed regret for the many past policies and actions that have eroded tbe political, economic and social systems of Aboriginal peoples and nations. To the victims who suffered physical and sexual abuse in the residential school system, the government said it is deeply sorry. Accompanying the Statement of Reconciliation was the announcement of a commitment of 350 million Canadian Dollars in new funding to develop a community-based healing strategy to assist Aboriginal people - Inuit, Métis and First Nations, on an off reserve - who have been affected by the legacy of physical and sexual abuse in residential schools. He also informed that progress is also being made in the discussions pertaining to indigenous self-government. It was said that a number of finalself-government agreements have recently been signed, and that the Government of Canadais currently engaged in 85 separate self-government negotiations across the country, involvingover one-half of Canada's First Nation and Inuit communities.

The Observer of New Zealand said that the Treaty of Waitangi is fundamental to the relationship between the Government and Maori, and the Government is committed to working witb Maori to find ways in which Maori concerns can be addressed. The Government has two key objectives for Maori: to address the socio-economic disparities which exist between Maori and non-Maori, and to reach fair and durable settlements to proven breaches of the Treaty of Waitangi. It was said that changes to the electoral system in New Zealand have led to significant increased Maori political representation. Today 15 of the 120 Members of the Parliament are Maori. Maori make up 14 per cent of the population and a similar proportion of the seats in Parliament are now held by Maori people. The cabinet contains three Maori Cabinet Ministers, including the Deputy Prime Minister and Treasurer, the Associate Treasurer and the Minister of Maori Affairs. The Working Group was also informed about the signing of the second major Deed of Settlement between the Crown and the Ngai Tahu tribe. The settlement comprises land and cash, as well as a range of mechanisms for the recognition of Maori spiritual, cultural and linguistic associations to land, fisheries aud traditional food, and for joint management of lands with high conservationvalues.

The Observer of Guatemala stated that the State must give the population equal opportunities and referred to the signing of the Indigenous Agreement, which was developed within the framework of the Peace Accord. It recognizes the identity of the indigenous
peoples in Guatemala as part of the multiethnic, pluricultural and multilingual nature of the society. Furthermore it recognizes the need to make official and promote indigenous languages, promote cultural identity and combat discrimination. It was said that Guatemala encourages participation as a means of guarantee and respect of indigenous fundamental rights thought commissions or committees established in 1997: Commission on Languages, Commission on Sacred Sites and Joint Committee on Education Reform. Numerous activities and projects carried out to strengthen bilingual intercultural education were mentioned, which
are being implemented in most of the languages spoken in the country.

The Observer of Brazil stated that the Government is committed to promote and protect the rights of indigenous peoples. He said that the Government recognizes that land and environment are the basic conditions for the physical and cultural survival of indigenous peoples as an ethnically differentiated group within the national society. It was said that the Brazilian Constitution grants the indigenous peoples "original rights" to lands they traditionally occupy. He informed the Working Group about the ongoing process of demarcation of indigenous lands. It was said that the Government of Brazil has already demarcated 54 per cent of the total of 541 lands, recognized by FUNAI as traditionally occupied by indigenous peoples, which represents 11 per cent of the Brazilian territory, or, tbe equivalent to France and England together. Furthermore, he stated that the Government has
carried out a $1 .7 million operation, from November 1997 to January 1998, through which 800 non-indigenous gold miners have been expelled from the Yanomami territory.

The Observer of Venezuela informed the Working Group about his Government's adoption in 1998 of a plan of immediate action pertaining to indigenous peoples, including a census of property, indigenous health and educational programmes.

The Observer of Myanmar said that his country is a Union that comprises 135 national races and that all of them are indigenous in the truest sense of the word. There are no distinct earlycomers or late colonizers. Accordingly, the issues of problems in the sense of indigenouspopulations do not exist in Myanmar. The Government is committed towards promotion and protection of the rights of the national races and will continue to do its utmost for all indigenous national races in Myanmar, so that they will be able to take part fully in political economic and social life of the Union free from any form of discrimination.

Tbe Observer for Australia said that the Government has continued to give effect to its policy priority of addressing indigenous disadvantage in key socio-economic areas. He said tbat the extent of the Government's commitment to improved health outcomes for indigenous peoples is indicated by the growth in funds allocated to this area, an almost forty percent increase in three years. He said that the Government also places a strong emphasis on economic development of indigenous peoples. In the last Budget, theGovernment injected capital into the Aboriginal and Torres Strait Islander Commercial Development Corporation to assist indigenous peoples become involved in major business ventures. Furthermore, that the Government has initiated a number of projects, aimed at increasing the literacy and numeracy skills of indigenous students, particularly in the vital early years, and at providing improved equipment and facilities in remote areas. He informed the Working Group about the establishment of a link-up service for separated family members in each state and the Northern Territory to assist people in tracing missing relatives. He said that the Government is very pleased that the Senate has passed the Native Title Amendment Act 1998, because this Act responds to the communities call to the Government to restore certainty to native title, and land management processes throughout Australia. He said that the Act will give the required certainty to all Australians and in particular farmers, miners and indigenous peoples.

An indigenous representative from Australia informed the Working Group about recent developments in Australia in the field of indigenous rights. He said that the last twelve months have been very difficult for the Aboriginal and Torres Strait Islander peoples in Australia because the country has lost its political way and direction. He referred to the progress of the One Nation party in Australia. He said that One Nation has a racist and right wing agenda, in which the indigenous peoples of Australia are among its main scapegoats. He expressed the opinion that the National Government has not taken any action in the face of
this new right wing agenda. Moreover, another indigenous representative from Australia informed the Working Group about Human Rights and Equal Opportunity Commission, whicb was established as an instrument under the International Covenant on Civil and Political Rights, whose mandate is to promote respect for and observance of human rights and enforce a federal anti-discrimination legislative regime. Until last year it was comprised of a president and six specialists commissioners, including an Aboriginal and Torres Strait Islander Social Justice Commissioner. In January 1998, the five year term of the appointment of the
Aboriginal and Torres Strait Islander Social Justice Commissioner ended and nobody was appointed to this post. Instead, the Race Discrimination Commissioner will act in the position. She expressed the view that the Government has crippled the capacity of the Human Rights and Equal Opportunity Commission to adequately represent human rights violations against indigenous peoples in Australia.

Another indigenous representative from Australia focused on the new legislation which has been passed in Australia to give effect to the Governments's "ten point plan." He said tbat the legislation is diminishing the rights which flowed from the Mabo Decision (Mabo v Queensland - No. 2, 1992/175 CLR 1) and the Wik Decision (Wik peoples v State of Queensland and others - B8 of 1996). The Mabo Decision of the Australian High Court recognized that the continent was inhabited by aboriginal peoples when the British first arrived in 1788. In the Mabo Decision, the High Court recognized the land rights or "native title" of Aboriginal and Torres Strait Islanders peoples. In the Wik Decision, the High Court found that pastoral leases did not necessarily give exclusive possession to the pastoralists, and that native title rights could co-exist with a pastoral lease.

A representative from the Norfolk Islands said that the Australian Government, earlier this year, announced that it was going to change the electoral legislation so that Australian Citizens can vote and stand as candidates for the Norfolk Islands legislative body within one month of arriving on Norfolk Islands. He said that this is an unacceptable interference in their self-government.

An Innu representative from Canada informed the Working Group about a 4.5 billion Canadian Dollars hydro-electric power project affecting indigenous peoples in Quebec and New Found land, which is being carried out without consent of the Innu people. He said that this project pose a real threat to Innu's cultural integrity because it will damage the Innu land and environment. Furthermore, that there is an urgent need for a settlement of indigenous land rights, and that the Canadian Government is obliged to pursue justice and to protect the rights of the Innu indigenous people.

An Ainu representative from Japan informed the Working Group that the indigenous Ainu people are currently trying to reclaim their ancestral lands through the national legal system.

An indigenous representative from Mexico informed among others, the WorkingGroup about growing indigenous poverty and displacements due to the ongoing conflict in the Chiapas region. He said that all attempts at negotiation between the National Liberation Army aud the Federal Government have so far failed. He welcomed the recent intervention of the High Commissioner for Human Rights, Ms. Mary Robinson, in which she called for (1)reduction of the presence of the army in the area; and (2) a renewal of dialogue, negotiations and communication between the involved parties.

Two indigenous representatives from the Philippines spoke about the Indigenous Peoples Rights Act of 1997. It was said that the Act does not give the necessary recognition and protection of the rights of indigenous peoples, and that Philippine indigenous peoples therefore are not satisfied with this new law. The law has two main components. Firstly, the recognition of indigenous land rights through the issuance of certificates of land titles. The second main component is the creation of the National Commission on Indigenous Peoples. It was said that it is difficult for indigenous peoples to obtain land titles due to the high level of costs involved and the difficult procedure. The establishment of the National Commission on Indigenous Peoples was criticized due to its composition of presidential appointees only.

An indigenous representative from Chile said that, although, the physical and cultural existence of the Mapuche people has now been recognized by the National Indigenous Act, there has been no significant change in policies on the promotion and protection of the rights of indigenous peoples in Chile. He said that although there are no widespread human rights violations the Mapuche are denied their fundamental freedoms. He also informed the Working Group about the fact that 21 national and international corporations have occupying the Mapuche territory.

An indigenous representative from Argentina said that international corporations are currently invading the Mapuche land with the blessings uf the Government of Argentina. The WPF Oil Company was said to carry out activities with grave detrimental effects on the health situation of the Mapuche people as well as their traditional lands and environment. He said that large quantities uf lead and mercury have poisoned the soil and ground water in the Myopic territory.

An indigenous representative frum Guatemala called on the United Nations to continue to monitor the peace process in Guatemala and not only to assess the human rights situation~ but also to provide training and tools for the indigenous peoples so that they may gain an equal status tu non-indigenous peoples.

Several indigenous representatives from Asia informed the Working Group abuut the signing of a Peace Accord, in December 1997, between the Government of Bangladesh and the Jana Samhati Samiti (JSS). An indigenous representative said that after two decades of violence and massacres during which thousands of indigenous peoples lost their lives, this Agreement provides hope for peace and stability in the Chittagung Hill Tracts region (CHT). However it was said that the Government of Bangladesh has not begun the implementation uf this Agreement. It was said that no steps have been taken to form the agreed Regional Council and apex body responsible for the administration and coordination of the development of the CHT. Furthermore, that not one single military camp has been dismantled although the Agreement provides for gradual military withdrawal. Moreover, he said that the 460,00 plains settlers who were transferred to the CHT by the population transfer programme continue to threaten the process of implementation of the Peace Agreement.

An indigenous representative from Asia stated that the Myanmar military regime has continued to deny the rights of the indigenous peoples and has engaged them in a civil conflict. It was said that last year alone a large number of people have been forcibly relocated in the Shan and Karen regions, which are the home lands of two of Myanmar's largest indigenous groups. He said that about 700 of the local Shan indigenous people were reported killed during the last year.

An indigenous representative from Brazil said that individuals and leaders advocating for the rights of indigenous peoples have been arrested and even killed. He said that Brazil's policy is not reflecting the interests and needs uf indigenous peoples. A representative of the Nubian people in Sudan said that his people is subjected tu forced assimilation and forced integration. An indigenous representative from Moluccas focused on the problem of unemployment among the indigenous peoples. He also said that there is still no equal nor adequate admission tu proper education nor to proper positions for the indigenous peoples un the Moluccas.

An indigenous representative from New Zealand brought to the attention of the Working Group, the impact of the Resource Management Act on the Maori tribes. She said that this Act continues its sophisticated colonization of the few remaining Maori natural resources.

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