(Report of WGPI 98)

IV. STUDY ON TREATIES, AGREEMENTS AND OTHER CONSTRUCTIVE

ARRANGEMENTS BETWEEN STATES AND INDIGENOUS POPULATIONS


The Special Rapporteur on treaties, agreements and other constructive arrangements between States and
indigenous populations, Prof. Miguel Alfonso Martinez, presented his final report on this matter to the Working
Group. He said that he has been working on this study for nine years. He continued by stating that this work has been extremely challenging and interesting, and that it has changed his view on many important matters. The study has introduced new ideas and offered him the opportunity to explore new ways of thinking. Moreover, that it has given him the opportunity to view new dimensions of issues concerning indigenous peoples. The Special Rapporteur apologized for the delay of his submission of the final report and for the fact that the report is available in English only. He thanked a number of individuals who have assisted him in his work, in particular his consultant Dr. Isabelle Schulte-Tenckhoff. He also expressed his gratitude to the Office of the High Commissioner for  Human Rights for its valuable support to his work.

The Special Rapporteur invited all participants to comment on the report and his conclusions and recommendations. He said that he will highly welcomeall critical opinions that may arise during the debate that will be held on the contents of this final report. He said he will take into account all the comments before the Report becomes an official United Nations publication.

The Special Rapporteur said that the report contains four chapters. The first chapter is dealing with key points of departure: (1) treaties concluded between States and indigenous peoples, (2) agreements made between States or other entities and indigenous peoples; (3) other constuctive arrangements arrived at with the participation of the indigenous peoples concerned; (4) treaties concluded between States containing provisions affecting indigenous peoples as third parties; and (5) situations involving
indigenous peoples who are not parties or the subject of any of the above-mentioned instruments.

The second chapter - summary of findings - addresses matters such as (1) treaties/agreements between indigenous peoples and States; (2) Other constructive arrangements; (3) Situations lacking specific bilateral legal instruments to govern relations
between indigenous peoples and States. The third chapter is looking into the origin, development and consequences of the process of domestication of indigenous issues including all matters related to treaties between indigenous peoples a States. The Special Rapporteur referred to paragraphs 168 - 169 in this regard.

· The conclusions and recommendations are contained in chapter four. The Special Rapporteur underlined the problem pertaining to indigenous land rights, and said that this is the core issue to indigenous peoples regardless of where they live. In paragraph 256 of his report, it is said that very little or no progress can be made in this field without tackling, soIving, redressing - in a way acceptable to the indigenous peoples concerned - the question of the uninterrupted dispossession of indigenous resources (land, in particular), vital to the lives and survival of indigenous peoples.

The Special Rapporteur also stated that indigenous peoples have the right to self determination, like all other peoples. He said that States have the duty to promote and protect this right.

The Chairperson-Rapporteur of the Working Group, Prof. Erica-Irene A. Daes, congratulated and expressed her deepest appreciation to Prof. Alfonso Martinez for his hard \work during the last nine years.

Mr. Guissé congratulated Prof. Alfonso Martinez for his thorough and comprehensive report, and thanked hirn for the work he has carried out over the last nine years. He said that his \work has contributed to a better comprehension and protection of the rights of indigenous peoples.  However, he said that it rnay be necessary to include an addendum to the document due to
the many unanswered questions. He recalled that the Special Rapporteur had said that there are no indigenous peoples in Africa and Asia. Mr Guissé observed however that if one looks a little deeper, one realizes that indigenous cornmunities do, in fact, exist in Africa. He mentioned the Batwa people in Rwanda as an example of an indigenous people in Africa.

The Observer of Denrnark addressed the factual content of the report as well as sorne other observations. In particular, she referred to chapter 2 B - entitled "Other Constructive Arrangements." She said that it is surprising if not alarrning how few references to legal texts or any other texts are found in the report, and that going back to the third progress report does not solve this fundamental problem of lack of references and rather few sources taken into account for this important work - with potentially far reaching consequences for sorne parties. She referred inter alia, to paragraphs 127 - 130 dealing with an assessment of the Greenland  Horne Rule Governrnent, and said that contrary to the impression given by the Special Rapporteur extensive legislative and executive powers, territorially as well as functionally defined. have been transferred to the Home Rule. For example, education, cultural, economic and social affairs, health services, fisheries, labour rnarket, trade, taxation, housing, physical planning and the mineral resources administration. She also emphasized that the Danish Government is obliged to consult the Horne Rule before entering into treaties that particularly affect Greenland interests. She also rnentioned, as an example, that Greenland in a referendum in 1982 opted lo withdraw from the then European Economic Council - now theEuropean Union, while Denrnark still is a member of the Union.

The Observer of the United States of America called attention to an omission in the study. He said that the study refers lo the status of the U.S. state of Hawaii, and its becoming the 50th stale in 1959. He said that the study neglects lo take into account an important action of the UN General Assembly on this subject. He referred to General Assembly resolution 1469 of 12 December 1959, in which the General Assembly found that the people of Hawaii effectively exercised their right to self-determination and freely chose their political status. Therefore, the action taken by the General Assembly should be adequately recognized in the final report of the Special Rapporteur.

The Special Rapporteur, Prof. Alfonso Martinez, responded to the statement by the representative of the United States pertaining to Hawaii. He stated that even though he was aware of General Assembly resolution 1469 on Hawaii, he did not think that the case of this nation merited a re-examination on the grounds of its particular situation after the passing of the so-called 1993 *Apology Bilí" by the United States Congress. He referred to General Assembly resolution 1954 relating to the case of Puerto Rico, in which the General Assembly found tbat the people of Puerto Rico effectively exercised their right lo self-determination. Despite this resolution of the General Assembly, the issue of Puerto Rico was resubmitted as a special problem of decolonization, and it was taken up as a special case. The Special Rapporteur said that he will elaborate further on this matter in his amended final report.

The Observer of Bangladesh said that the study on treaties has no direct relevance to her country because tere are no indigenous peoples in Bangladesh. Bangladesh has, however. sorne ethnic groups of tribal origin living in the Chittagong Hill Tracts who are distinct   frorn the rnainstrearn population.

An indigenous representative stated that there was an official recognition of indigenous peoples in Bangladesh. He referred to Bangladeshi Law No. 12 of 1995 which uses the terrn "indigenous hillman" of any of the hill districts of Rangamati, Bandarban and Kbagrachari. He said that if there where no indigenous peoples in Bangladesh, or in Asia for that matter, this law arnong others would not have been enacted. Another indigenous representative frorn Asia endorsed the stalement made by Mr. Guissé, with regard to the view expressed by the Special Rapporteur concerning the existence of indigenous peoples in Africa and Asia.

An indigenous representative from Africa strongly endorsed Mr. Guissé's statement pertaining to the concept of
indigenous peoples and opposed the view of Prof. Alfonso Martinez that there are no indigenous peoples in Africa and Asia. He said tha the Working Group would be incomplete without the participation of indigenous peoples from Africa and Asia. He regarded that the recommendations relating to Africa and Asia as being flawed, and said that his organization reject them totally.

Many indigenous representatives said that they have not had the opportunity to adecuately study the report and
prepare their stalements as they only recently received copies of the lengthy report which had been released in a unedited version in English only. They requested another opportunity in the future to analyze and comment on the report. It was said that the treaty study therefore should be on the agenda of the Working Group at its seventeenth session.

Many indigenous representatives from Latin America said that the lack of a Spanish \'ersion of the report has restricted them from making comments on the report and its recommendations and supported the idea, expressed by other indigenous representatives to further debate the contents of the final report in 1999 by means of including the appropriate item on the agenda for its seventeenth session.

Many indigenous representative from North America expressed their gratitude to the SpeciaI Rapporteur for his excellent work. Many endorsed the view of the Special Rapporteur, as expressed in paragraph 270 of ihe report, in which it is said that in the case of indigenous peoples having concluded treaties or other legal instruments with the European settlers and/or their successors in the colonization process, the Special Rapporteur has not found any legal arguments to sustain the position that those treaties have lost their international juridical status as nations.


A representative from North America said that he brings the message of 72 First Nations Chiefs  and Councils who accept and endorse the Special Rapporteur's final report on the Treaty study.

An indigenous representative from Chile expressed his thanks to the Special Rappurteur and said that his traditional authorities attached hope lo the results of the final report in particular to its recommendations.

An indigenous representative from Hawaii strongly endorsed the report and its cunclusions and recommendations. She said that Hawaii has rightfully been on the United Nations Iist of colonized territories, but that it in 1959 was removed from ihe list by an unilateral action of the United Stales of America. Therefore, the indigenous peoples of Hawaii were never given the opportunity lo decolonize their lands or to vote for autonomy or independence. She said she welcomes the fact that Special Rapporteur acknowledges this hisouric fact.

An indigenous representative from Canada said that his people are specially concerned with the issue of extinguishment of native title as a precondition to treaty negotiations. He said that States seek their advantage through treaties but often neglect to respect their obligations to indigenous peoples in these same treaties, and that treaties therefore often serve as instruments of dispossession. He said that he welcomes the recommendations of the Special Rapporteur, and in particular, his recommendation for more effective national mechanisms for conflict resolulion. However, where such conflict resolution mechanisms do not exist, or have not proven effective due to the inherent conflict of interest of the State party, recourse to international sources of adjudication must be made available.

At the end of the debate, the Special Rapporteur expressed his gratitude for the comments made on the final report, in particular those which contained criticisms. He wanted to clarify one very important issue: he had never advanced the idea, as stated by sorne participants in the debate, that there were no indigenous peoples in Africa or Asia. His work has led him to concelude the opposite, namely that in ihe context of ihe work of the United Nations on indigenous issues all peoples in Africa and Asia not only those who come to Geneva in the Summer to contribute to the Working Group's debate, are indeed indigenous in the sense of that term, and can claim such status in particular in the light of the decolonization  process.

TO CHAPTER V