(Study on treaties, agreements and other constructive arrangements, Chapter IV, part 3)

298. In this context it is useful to reiterate a point not~d earlier in this Chapter (supra, para. 263): most of the cases/situations reviewed by the Special Rapporteur concerned either actual conflict situations by definition, or have the potential to erupt into one at any time and under the most unexpected circumstances.

299. In this context, the need to encourage and nurture and not always easy process of confidence-building can never be overemphasized. It is a process that requires both the taking of positive steps as well as the avoiding of actions that would exacerbate existing situations. The first Recommendation of the Special Rapporteur has to do with this much needed process.

300. Steps such as the one taken years ago by Australian Prime Minister Robert. Hawke recognising the misdeeds committed by the first settlers against the Aborigines, the recent admissions by the Vatican on certain aspects of the role played by the Catholic Church at various stages of the colonisation of Latin America, the 1993 Apology Bill passed by the U.S. Congress with respect to Hawaii, and the establishment by the Government of Mexico of peaceful conflict- resolution mechanisms to deal with the events in Chiapas (1994) are positive developments in that direction. The Governments of those countries should be encouraged to have an effective follow-up to those initial steps. Other Governments, under similar circumstances, are called upon to be bold enough to undertake like steps in their specific societal context.

301. By the same token, actions that previsibly will aggravate existing situations, or create new conflicts, should be avoided, or subjected to an immediate sine die moratorium. Examples of what should not be done, in the view of the Special Rapporteur, abound: forced evictions (as in the case of the Navajo Nation in Arizona), the creation of conditions of duress for Indigenous peoples to induce them to accept conditions for negotiating (among others, the case of the Lubricon Cree in Alberta), the fragmentation of Indigenous nations to pit them against each other (as in cases in the North Island of Aotearoa/New Zealand), the ignoring and by-passing of the traditional authorities by promoting new authorities under non-indigenous regulations (as in a number of cases in the U.S.), the continuation of "development projects" to the detriment of the Indigenous habitat (case of the Bio-Bio River in Chile), and attempts to launch major diversions to redirect the focus on individual rights as opposed to collective-communial rights (as denounced by the Haudenosaunee Confederacy), and many others should be carefully avoided.

302. This i.s consistent with one of the key traits of the original approach by the Special Rapporteur as to what was to be the thrust of his Conclusions and Recommendations. Namely to contribute to fostering new relations based on mutual recognition, harmony and cooperation, instead of an attitude of ignoring the other party, confrontation and rejection.

303. Regarding Recommendations to fully ascertain and properly channel the recognised potential of treaties/agreements and other constructive arrangements, as well as of treaty-making (again in its broadest sense) as elements for the regulation of more positive and less antagonistic future relationshi.ps between Indigenous peoples and States, due account should be taken of two processes already addressed by the Special Rapporteur in the progress of his work, viz. the history of treaty relations between Indigenous peoples and States, especially the lessons to be drawn from an analysis of the process of domesti.cation in the context of former European settler colonies (vid. supra, Chapter III); and 2) the rationale presiding over ongoing negotiations and certain political processes developing between States and Indigenous peoples in various countries.

304. As far as the first of the two processes mentioned above, the main lesson to be drawn from history concerns the problems of treaty enforcement and implementation. The Special Rapporteur will offer a number of Recommendations on this key issue.

305. It is only too obvious that the problem in this area does not lie in the lack of provisions but rather in the failure of the State party to comply with those provisions. A case in point is that of the United States, the country with the largest number (approximately 400) of acknowledged treaties concluded with Indigenous nations, most of them forced into oblivion by unilateral actions by either Federal authorities or the Congress.

306. History demonstrates the existence \tab of a wide array of means at the disposal of the State bodies --including \tab the judiciary-- to unilaterally disregard treaty provi.sions that place a \tab burden on the State; a disregard that goes hand in hand with the observance of \tab provisions that are favourable to the State party.

307. Regarding the rationale of present-day negotiations and other political contacts between States and Indigenous peoples, two observations need to be made. The first regards what may be termed non-negotiables, for example the principle of extinguishment of so-called native title as a condition for the settlement of Indigenous claims. It remains to be seen to what extent the existence of such non-negotiables --if imposed by State negotiators-- compromises the validity of, not only the agreements already reached but also that of those to come. The free consent of Indigenous peoples, essential to make these compacts legally sound, may be seriously jeopardised by this particularly effective condition of duress.

308. The second observation concerns the issue of "self-government" and "autonomy" being offered, in certain cases, as a substitute for the full exercise af ancestral rights related to governance, which are now to be extinguished. In order to avoid new problems in the future, the Special Rapporteur feels the need to recommend that the possible advantages and disadvantages of such regimes be carefully assessed by both parties --but in particular, by the Indigenous side-- in light of the history of treaty-making and treaty implementation and observance resulting from past negotiations between Indigenous nations and States.

309. For the same reasons, it is especially important to fully assess (or reassess), with the same point of reference, the relevance and potential utility of the quasi-juridical category of "constructive arrangements" for Indigenous peoples still deprived of any formal and consensual relationship with the States in which they now happen to live.

310. Regarding Recommendations on yet anotber issue crucial to the forward- looking aspects of this Study, it must be noted that the Special Rapporteur, at the beginning of his work, singled out three elements that deserved investigation with respect to mechanisms of conflict-resolution. Those three elements were: 1) the actual capability of existing mechanisms to deal promptly and, preferably, in a preventive manner with conflict situations; 2) the "sensitive issue" of national versus international jurisdiction, and 3) the manner in which the effective participation in these mechanisms by all parties concerned --in particular of Indigenous peoples-- is to be secured. (E/N.4/Sub.2/1991y' 1991/33, para. 118.)

311. In another part of this same report (supra.para. 266) the Special Rapporteur noted the generalised opinion that in light of the situation endured by Indigenous peoples today, the existing mechanisms, either administrative or judicial, within the non-indigenous spheres of government have been incapable of solving their difficult predicament. This forces him to advance a number of recommendations on this subject.

312. He first recommends the establishment within States with a sizeable Indigenous population of an entirely new, special jurisdiction to deal exclusively with Indigenous issues, independent of existing governmental (central or otherwise) structures, although financed by public funds, that will gradually replace the existing bureaucratic/administrative government branches now charge of those issues.

313. This special jurisdiction, in his view, should have four distinct specialised branches (permanent and with adequate professional staffing): 1) an advisory conflict-resolution body to which all disputes --including those related to treaty-implementation-- arising between Indigenous peoples and non- indigenous individuals, entities and institutions (including Government institutions) shall be mandatorily submitted, empowered to encourage and conduct negotiations between the interested parties and to issue the recommendations considered pertinent to resolve the controversy; 2) a body to draft, through negotiations with the Indigenous peoples concerned: a) new juridical bilateral, consensual, legal instruments with the Zndigenous peoples interested, and b) new pieces of legislation and other proposals to be submitted to the proper legislative and administrative government branches, so as to gradually create a new institutionalised legal order applicable to all Indigenous issues, and according to their needs; 3) a judicial collegiate body, to which all cases that after a reasonable period of time have not been resolved through the recommendations by the advisory body, shall be mandatorily submitted after a reasonable period of time, empowered to adjudicate on them, and capable of making its final decisions enforceable by making use of the coercive power of the State, and 4) an administrative branch in charge of all logistical aspects of Indigenous-non indigenous relations.

314. The Special Rapporteur is fully aware of many of the obstacles that such an innovative, far-reaching approach might have to face. In fact, and to mention only one, it is not difficult to appreciate the many vested interests that might be affected by the redundancy of the structures now existing to deal with Indigenous issues in many countries. Only strong political determination -particularly on the part of the leadership of the non-indigenous sector of the society-- can make it viable. One other essential element is also clear: the effective participation of Indigenous peoples --preferably on an equitable basis with the non-indigenous people-- in all four of the recommended branches is absolutely central to the "philosophy" presiding over the Special Rapporteur's overall approach to this question.

315. It is obvious that the above described is but a mere sketch of the new institutionality recommended. Much lies ahead in terms of filling its quite visible lacunae. While the Special Rapporteur does not lack ideas on how to fill some of the gaps, he has considered it wise to allow for the required fine-tuning to be done at a later stage, around a negotiating table, by the interested parties themselves in the different countries. The way in which such a negotiation process is organised and conducted may well be the true litmus test of the eventual merits of his recommendation and of the eventual viability of the structure proposed, in a given socio-political context.

316. In advancing the recommendations set forth above, the Special Rapporteur has benefited from the highly interesting ideas on this very same subject formulated in its final report (1996) by the Royal Commission on Aboriginal Peoples established by the Government of Canada in its final report (1996). ( Report of the Royal Commission on Aboriginal Peoples, Vol. 2, "Restructuring the Relationship," Part One (Ottawa: Minister of Supply and Servi.ces, 1996). )

317. While it is generally held that contentious issues arising from treaties or constructive arrangements involving Indigenous peoples should be discussed in the domestic realm, the international dimension of the treaty problematic nevertheless warrants proper consideration.

318. A crucial question relates to the desirability of an international adjudication mechanism to handle claims or complaints from Indigenous peoples, in particular those arising from treaties and constructive arrangements of an international status.

319. The Special Rapporteur is quite familiar with the reticence expressed time and again, by States toward the question of taking these issues back to open discussion and decision-making by international fora. In fact, he might even agree with them that, on certain isues (e.g. disputes not related to treaty implementation and observance) it would be more productive to keep their review and decision exclusively within their domestic jurisdiction until this is completely exhausted.

320. However, he is of the opinion that one should not dismiss outright the notion of possible benefits to be reaped via the establishment of an international body (e.g. the proposed Permanent Forum of Indigenous Peoples) that, under certain circumstances, might be empowered --with the previous blanket acquiesence (or on an ad hoc basis) of the State concerned-- to take charge of final decision in a dispute between the Indigenous peoples living within the borders of a modern State and non-indigenous institutions, including State institutions.

321. At any rate, the Special Rapporteur recommends that a United Nations- sponsored workshop be convened --at the earliest possible date, and within the framework of the International Decade of Indigenous Populations--, to open an educated discussion on the possible merits and demerits of the establishment of such an instance.

322. One last point on the subject: with the growing international concern about all human rights and related developments, one element appears very clear in the mind of the Special Rapporteur: the more effective and developed the national mechanisms for conflict-resolution on Indigenous issues are, the less need there will be for establishing an international body for that purpose. The opposite is also true: the non-existence, malfunctioning, anti-Indigenous discriminatory approaches, or ineffectiveness of those national institutions will provide more valid arguments for international options. This may be one of the strongest arguments possible for the establishment (or further strengthening) of proper, effective internal channels for the implementation/observance of Indigeous rights and conflict-resolution of indigenous-related issues.

323. Another Recommendation which seems timely to address to State institutions empowered to deal with Indigenous issues, is that when in the decision-making process on issues of interest to Indigenous peoples, they should apply and construct (or continue to do so) the provisions of the national legislation and international standards and instruments in the most favourable way for Indigenous peoples; particularly, in cases related to treaty rights. In all cases of treaty/agreements/constructive arrangements relationships, the interpretation of the Indigenous party on the provisions of said instruments should be accorded equal value as that granted to non- indigenous versions of the same documents.

324. The Special Rapporteur also recommends --in the existence of treaties/agreements relations between Indigenous peoples and States-- the fullest possible implementation in good faith of their provisions from the perspective of seeking both justice and reconciliation. In the event that the very existence (or present day validity) of a treaty becomes a matter of dispute, a formal recognition of that instrument as a legal point of reference in the State's relations with the peoples concerned should be a step which will greatly contribute to a process of confidence-building that may bring substantial benefits. In this context, the completion of the ratification process of draft treaties/agreements already fully negotiated with Indigenous people is strongly recommended by the Special Rapporteur.

325. In the event of obligations established in bilateral or multilateral treaties concluded by States --to which Indigenous peoples are third parties-- that may affect those peoples, the Special Rapporteur recommends that the State parties to said instruments seek the free and educated acquiescence of the Indigenous party before attempting to enforce said obligations.

326. The Special Rapporteur further recommends State authorities not to take up or continue to engage in development projects that may impair the environment of Indigenous lands and/or adversely affect their traditional economic activities, religious ceremonies or cultural heritage, without previously commissioning the appropriate ecological studies to determine the actual negative impact those projects will have.

327. Finally, in connection with the Indigenous affairs related activities of the Office of the United Nations High Commissioner for Human Rights/Centre for Human Rights, the Special Rapporteur offers the following recommendations:

a) A substantial increase in the permanent staff assigned to carry out such activities;
b) The establi.shment, at the earliest possible date, of a section within the United Nations Treaty Registry in charge of locating, compiling, registering, numbering and publishing all treaties concluded between Indigenous peoples and States. Due attention should be given in this endeavour to secure access to the Indigenous oral version of said instruments;
c) To convene, in the framework of the Programme of Action for the International Decade and at the earliest possible date, three workshops related to: the establishment of a international conflict-resolution mechanism on Indigenous issues, modalities for redressing the effects of the historical process of land dispossession suffered by Indigenous peoples and the implementation/observance of Indigenous treaty rights, and
d) To promote the creation of an INTERNET page exclusively dedicated to Indigenous issues and the United Nations activities related to Indigenous interests.