UNITED NATIONS E
Economic and Social Council Distr. GENERAL E/CN.4/1997/102 10 December 1996 Original: ENGLISH
COMMISSION ON HUMAN RIGHTS Fifty-third session Item 24 of the provisional agenda
INDIGENOUS ISSUES
Report of the working group established in accordance with Commission on Human Rights resolution 1995/32
Chairperson-Rapporteur: Mr. José Urrutia (Peru)
Introduction
Establishment of the Working Group
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 Commission 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 1995/32 of 25 July 1995.
2. The working group held 18 meetings during the period 21 October-1 November 1996. A total of 401 people attended the meetings of the working group, including representatives of 52 Governments and 77 indigenous and non-governmental organizations.
3. This report is solely a record of the debate and does not imply acceptance of the usage of either the expression "indigenous peoples" or "indigenous people". In this report both are used without prejudice to the positions of particular delegations, where divergences of approach remain.
4. This report contains a summary of the statements by various representatives of delegations attending the working group. For full and authoritative versions of the interventions, reference should be made to the statements of the representatives, as given. Many delegations made copies of their interventions available to the working group.
5. The working group was opened by a representative of the High Commissioner for Human Rights/Centre for Human Rights on behalf of the High Commissioner for Human Rights. It was reported that, in accordance with the procedures established by the Commission on Human Rights in its resolution 1995/32, a further 28 organizations of indigenous people had been accredited by the Economic and Social Council, bringing the total to 106.
6. At its 1st meeting, the working group unanimously re-elected Mr. José Urrutia (Peru) as its Chairperson-Rapporteur.
Documentation
7. The working group had before it the following documents:
Agenda (E/CN.4/1996/WG.15/1/Rev.1);
Communication received from Bangladesh (E/CN.4/1996/WG.15/CRP.1);
Draft report of the working group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 (E/CN.4/1996/WG.15/CRP.2-7);
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 declaration on the rights of indigenous peoples as agreed upon by the members of the working group at its eleventh session (E/CN.4/Sub.2/1994/2/Add.1);
Note by the International Labour Office on comments on the draft United Nations declaration on the rights of indigenous peoples (E/CN.4/1995/119);
General Assembly resolution 50/157 on Programme of Activities for the International Decade of the World's Indigenous People;
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 in accordance with paragraph 5 of General Assembly resolution 49/214 of 23 December 1994;
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 (annex).
Participation in the session
9. The following States members of the Commission on Human Rights were represented: Algeria, Australia, Austria, Bangladesh, Brazil, Bulgaria, Canada, Chile, China, Colombia, Cuba, Denmark, Ecuador, El Salvador, Ethiopia, France, Germany, India, Indonesia, Italy, Japan, Malaysia, Mexico, Netherlands, Pakistan, Peru, Philippines, Russian Federation, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America and Venezuela.
10. The following States Members of the United Nations were represented by observers: Argentina, Bolivia, Costa Rica, Estonia, Fiji, Finland, Guatemala, Honduras, Iraq, Morocco, New Zealand, Nigeria, Norway, South Africa, Spain, Sweden, Thailand and Viet Nam.
11. The following non-member States were represented by observers: Holy See and Switzerland.
12. The following United Nations body was represented by an observer: Voluntary Fund for Indigenous Populations.
13. The following specialized agency was represented by an observer: International Labour Office.
14. The following national institution was represented by an observer: Congreso de la Unión (Mexico).
15. The following non-governmental organizations in consultative status with the Economic and Social Council were also represented by observers:
General Consultative Status
World Confederation of Work and World Federation of Democratic Youth.
Special Consultative Status
Aboriginal and Torres Strait Islander Commission, Anti-Slavery International, Caritas Internationalis, Commission for the Defense of Human Rights in Central America, Commission of the Churches on International Affairs of the World Council of Churches, Consultative Council of Jewish Organizations, Four Directions Council, Indigenous World Association, International Centre for Human Rights and Democratic Development, International Federation of Human Rights Leagues, International Indian Treaty Council, International League for the Rights and Liberation of Peoples, International Organization of Indigenous Resource Development, International Service for Human Rights, International Work Group for Indigenous Affairs, Inuit Circumpolar Conference, North-South XXI, Pax Christi International, Society for Threatened Peoples, Women's International League for Peace and Freedom, World Council of Indigenous Peoples and World Federalist Movement.
Roster
Grand Council of the Crees (of Quebéc), Indian Law Resource Center, International Movement Against All Forms of Discrimination and Racism, Minority Rights Group, Procedural Aspects of International Law Institute and Saami Council.
16. The following organizations of indigenous people accredited in accordance with Commission on Human Rights resolution 1995/32 were represented by observers:
Aboriginal and Torres Strait Islander Social Justice Commissioner, Ainu Association of Hokkaido, American Indian Law Alliance, Asociación Napguana, Asociación Socio-Económico de Productores Indígenas del Tawantinsuyu, Asociación Tea-Amaro Runa, Assembly of First Nations, Association nouvelle de la culture et des arts populaires, Association of the Shor People, Black Hills Teton Sioux Nation, Catawba Indian Nation, Central Land Council, Chickasaw Nation, Chittagong Hill Tracts Peace Campaign, Comisión Coordinadora de Organizaciones y Naciones Indígenas del Continente, Comisión Internacional de Derechos de Pueblos Indígenas de Sudamérica, Comisión Jurídica de los Pueblos de Integración Tahuantinsuyana, Comisión Jurídica para el Autodesarrollo de los Pueblos Originarios Andinos, Confederación Sindical Unica de Trabajadores Campesinos de Bolivia, Confederacy of Treaty Six First Nations, Consejo de Todas las Tierras, Consejo Inter-Regional Mapuche, Consejo Nacional Indio de Venezuela, Cordillera Peoples Alliance, Finno-Ugric Consultation Committee, Ikce Wicasa Ta Omniciye, Indian Confederation of Indigenous and Tribal Peoples, Indigenous Women Aboriginal Corporation, International Alliance of the Indigenous and Tribal Peoples of Tropical Forests, International Confederation of Autonomous Chapters of the American Indian Movement, Kimberley Land Council, L'auravetl'an Foundation, Lumad Mindanaw Peoples Federation, Lummi Indian Business Council, MAA Development Association, Mejlis of Crimean Tatar People, Mohawk Nation Council of Chiefs, Movimiento Indio "Tupaj Katari", National Aboriginal and Islander Legal Services Secretariat, New South Wales Aboriginal Land Council, Ngaiterangi Iwi Incorporated Society, Ngati Te Ata, Organisation for Survival of Illaikipiak Indigenous Maasai Group Initiative, Te Kamau Maro, Tuvenien Branch of the Public Association "Russia's Regions", Upper Sioux Community and Wellington Maori Legal Service Inc.
Organization of work
17. During the 1st meeting the provisional agenda was adopted. At the 3rd meeting the agenda was amended by including a fifth item entitled "Other matters".
18. In his opening statement, at the 1st meeting, the Chairperson-Rapporteur informed the working group that, as a result of his consultations, there was broad consensus on the fact that the working group should adopt an adequate methodology in order to make progress with respect to its past session, when participants expressed their general views on the draft. It was now possible to receive from Governments and indigenous representatives concrete proposals concerning each article, in order to build a more clear and precise picture of all the different positions on this matter. In this regard, he submitted to the working group a timetable in which articles of the draft declaration were reclustered for the sole purpose of discussion, taking into account that it would be helpful to consider at the same moment those articles dealing with the same issue or closely related issues. This reclustering, based on the suggestions made in the technical review of the draft declaration (see E/CN.4/Sub.2/1994/2), was the result of the consultations held by the Chairperson-Rapporteur. He also stressed that this exercise should not be considered as a negotiation, that no changes would thus be made to the draft declaration at the present session, and that his final report would faithfully reflect all the positions and concrete proposals expressed by participants, without introducing any amendment to the draft.
19. At its 2nd meeting, the working group approved the Chairperson's proposal and therefore decided to allocate, at the end of the session, two meetings for a general debate and to consider the reclustered articles of the draft in the following order: [12, 13, 14]; [24, 29]; [1, 2, 43]; [42, 44, 45]; [5, 9, 32]; [15, 16, 17, 18]; [6, 7, 10, 11]; [19, 20, 22, 23]; [4, 8, 21, 33]; [25, 26]; [27, 28, 30]; [36, 37, 39]; [35, 38, 40, 41]; [3, 31, 34].
20. With regard to the organization of work, an indigenous representative read a statement, agreed upon by the caucus of indigenous peoples, calling for the immediate adoption of the "draft declaration on the rights of indigenous peoples" as adopted by the Sub-Commission without change, amendment or deletion as a statement of minimum standards. All indigenous nations, peoples and organizations present regarded the draft declaration as adopted by the Sub-Commission as the minimum standards for the promotion and protection of the fundamental rights of indigenous peoples. He called upon all participants at the present session to engage in a general debate on the fundamental issues and concepts of the draft while clarifying that indigenous peoples would not engage in a dialogue which would dilute or change the draft. Furthermore, he requested that there be a plenary consensus on a change of the internal rules of procedure guiding the working group specifically providing for the equal and full participation of indigenous peoples in its deliberations, including full participation as partners in the decision-making authority of the working group. Inherent in this request was the recognition that the report of the working group must be produced with the full involvement and consent of indigenous peoples. More importantly, it required that the draft declaration could only be transmitted to the Commission on Human Rights with the full and informed consent of indigenous peoples. The report must formally contain a request for the amendment of Commission on Human Rights resolution 1995/32 of 3 March 1995, to ensure the full and equal participation of indigenous peoples and nations in the working group. Finally, he repeatedly requested that government delegations respond to the statement and the proposals contained therein. 21. The comprehensive nature of the statement was reflected in the large number of statements of both regional groups of indigenous organizations and individual indigenous organizations in which support for the statement was expressed and the proposals contained therein reiterated.
22. The representative of Australia stated that the participation of indigenous peoples was absolutely fundamental to the process of elaborating a draft declaration. Adoption of a declaration would be meaningless if that process did not lead to an understanding on the part of indigenous and non-indigenous peoples and Governments of the contents of the draft and the reasoning and necessity behind it. Growing international and national awareness of indigenous issues had led to steady progress but problems remained which required further consultation and perhaps education. The draft as adopted by the Sub-Commission was a complex instrument that contained many issues that touched upon matters of governmental jurisdiction and the position of non-indigenous people in society. It was impossible for his Government at this stage to consider the declaration as adopted by the Sub-Commission as a whole and suggested that, at this point, comments on specific articles be put forward as a way of providing information and not to come to any conclusions. He concluded by proposing that, in practice, indigenous peoples should participate on an equal basis in the working group considering that the declaration must have the support of indigenous peoples to be successful. He urged participants to listen to each other and appealed to all participants to work through the text of the draft in a spirit of cooperation to avoid derailment of the process.
23. The representative of Denmark stated that his Government's position in its support of the draft as adopted by the Sub-Commission was clear. He expressed the wish to move forward considering that his Government considered adoption by the General Assembly a matter of urgency. Proceeding without the participation of indigenous peoples would be very unfortunate and render the resulting declaration meaningless. Ownership of the draft by all participants could only be established through dialogue and he urged contributions from all participants. Finally, he stated that although the working group was bound by its mandate and rules, it would interpret the rules as liberally as possible.
24. The representative of Canada reiterated his Government's commitment to achieving the goal of a declaration that reflected the unique place of indigenous people in the world; was universal in application; promoted reconciliation and the protection of indigenous rights; that worked effectively against discrimination; and provided clear and practical guidance for the development of effective and harmonious relationships between indigenous people and States. He recalled that at the first session of the working group, which he believed to have been a success and a landmark, it was clearly established that the basis for the work would be the "draft declaration on the rights of indigenous peoples" and that the completed overview of the draft had demonstrated broad support for the development of this important human rights instrument and the need for careful attention to its provisions. The input of the many organizations of indigenous people present would be indispensable for developing a strong and durable declaration and if the working group was to make progress, it was imperative that the full range of positions be voiced and that States and organizations of indigenous people alike take up the challenge and bear responsibility for taking the working group significantly closer to the goal.
25. The representative of Mexico stated that as far as her delegation was concerned there were no easy or difficult articles. The delegation would follow the debate and make proposals which would promote the rights of indigenous people.
26. The observer for Norway stressed that the participation of indigenous organizations was absolutely fundamental. He assured participants that Norway wanted a strong declaration but that some provisions in the draft adopted by the Sub-Commission needed further work. While noting that amendment of the rules could only be done by the Economic and Social Council, he recommended that the rules be applied as flexibly as possible to assure real cooperation and assured indigenous participants of Norway's openness to dialogue and cooperation.
27. The representative of Chile said that he could not imagine a process without the full participation of indigenous peoples. It was vital that the declaration be adopted before the end of the International Decade of the World's Indigenous People but, in order to strengthen and not weaken the draft, some modifications, clarifications and corrections to certain articles were required.
28. The observer for Sweden stressed the vital importance of the participation of indigenous peoples in the working group and said that her Government fully supported the aim of adopting the draft declaration during the International Decade. The observer for Bolivia stated that the working group must continue its work and that indigenous peoples were welcome to participate in line with Commission on Human Rights resolution 1995/32. The working group could not fail to hear the comments of those most concerned. Furthermore, although it would be Governments that would approve the draft the withdrawal of indigenous peoples from the process would not be beneficial.
29. The observer for Fiji said that should the working group fail to produce substantial results the wrong political signal would be sent to the world. Cooperation and partnership between Governments and indigenous representatives would be needed and they both had grave responsibilities in that respect. The participation of indigenous peoples was fundamental to the draft declaration. Furthermore, Fiji would happily seek the adoption of the draft as adopted by the Sub-Commission but other Governments had not completed their review of the draft or fully addressed domestic constituencies on the issue. He therefore appealed to indigenous peoples to recognize that Governments did need more time before they could adopt a more definitive position on the draft declaration as a whole, and on individual provisions. He also said that consultation should not lead to delay.
30. The observer for New Zealand expressed the belief that it would not be possible to resolve all the very difficult issues that had to be addressed by the working group at the current session since the process towards consensus would take time and involve negotiation and compromise on all parts. It was essential that the views and objectives of indigenous people should continue to be heard in the working group. The representative of Ukraine stressed that it was important to preserve the partnership between participants and that while considering the mandate of the working group all interested parties could provide their comments, further constructive dialogue would benefit all.
31. The representative of the United States of America stated that his Government had fought hard within the Commission on Human Rights to ensure that tribal governments and organizations of indigenous people not in consultative status with the Economic and Social Council would have an opportunity to participate in the working group and that the working group needed all of their insights.
32. The representative of Peru pointed out that the working group could not digress from its sole mandate of drafting a declaration. He expressed confidence that the final report would reflect the legitimate concerns of the indigenous people with relation to the mechanisms for participation and stated the view that the Commission on Human Rights and the Economic and Social Council should study complementary means of ensuring greater participation of indigenous people than currently existed.
33. The representative of Colombia underlined the importance of the participation of indigenous people in the debate on the draft declaration and expressed concern about the proposal by indigenous peoples that the Sub-Commission's draft be adopted without change as well as the proposal to modify the rules of procedure. The delegation would support any decision the Chairperson thought appropriate in order to make the session a success.
34. The representative of the Russian Federation stated that the full participation of indigenous peoples was vital and that without it the work of the working group would be meaningless. Progress in the adoption of the declaration could only be achieved through dialogue. The report of the working group should reflect the indigenous peoples' voice. He commented that the rules of participation had been flexible within the working group.
35. The Chairperson-Rapporteur stated that he considered that all the concerns expressed in the indigenous caucus statement were valid and merited the special attention of all the governmental delegations to the working group. He had worked towards the creation of an open climate of discussion within which indigenous people could express their views in their entirety and in total freedom. The report of the session would specifically reflect the concerns expressed by the caucus of indigenous people concerning the need to study additional forms and mechanisms that would permit greater participation of indigenous people in the working group. The draft as adopted by the Sub-Commission was the basis of the work of the working group and the present session was not an exercise of modification and drafting. He hoped that a constructive exchange of the different opinions would allow the United Nations to adopt a declaration on the rights of indigenous people that would ensure their effective protection.
36. In a further statement of the indigenous caucus, an indigenous representative stated that it must be explicitly recognized that indigenous nations and peoples were equal participants in the working group and not "observers" and that they should have full input in the drafting of the reports of the sessions of the working group. Furthermore, indigenous peoples must be equally able to recommend how the work of the working group was to proceed and to play a direct role in the development of the agenda and all other decision-making processes of the working group. He proposed that Governments should discuss with indigenous peoples, both individually and collectively, a change of the rules of the working group with a view to securing full and equal indigenous participation. This was felt to be a reasonable proposal that fell within the mandate provided to the working group by the Economic and Social Council. The indigenous caucus formally requested that delegations seriously consider the proposals, which were intended to offer constructive solutions to the practical problems that had come to light at the session. No one wanted to waste valuable time on procedural wrangling, but it was important to all indigenous delegations present that these matters be properly addressed. In closing, he expressed appreciation for the efforts of the Chairman-Rapporteur and the patience of all those present.
37. Support for the statement was expressed in several joint and individual statements by indigenous organizations.
38. Following consultations, participants agreed to first hold a general debate on the fundamental issues and concepts of the draft declaration adopted by the Sub-Commission after which participants would comment on the operative paragraphs of the draft without, however, undertaking a drafting exercise. This amendment to the organization of work was adopted.
39. The observer for the Indian Law Resource Center proposed that the full and equal participation of indigenous peoples in the working group be ensured. She recommended that the working group request the Commission on Human Rights to hold a series of technical meetings to consider modalities of participation.
40. Many delegations felt it was important that steps be taken to consult with organizations of indigenous people before the next session of the working group. Accordingly, the working group recommended that the Commission on Human Rights take this into account in the action it takes on this report.
41. At the 18th meeting, the present report was adopted by the working group.
General debate
42. The observer for Bolivia stated that his Government generally supported the draft adopted by the Sub-Commission considering that it contained the minimum standards for the protection of indigenous peoples and was in line with national legislation. He stressed that Bolivia believed it was fundamental to use the term "indigenous peoples" and reiterated the hope that the General Assembly could adopt the declaration as soon as possible in the framework of a consensus. The representative of Chile said that the Sub-Commission's draft constituted a solid basis for the work of the group and that the search for better wording should not distort the meaning of the draft. Chile supported the use of the term "indigenous peoples" but self-determination could not become a threat to the territorial integrity of States.
43. The observer for Fiji reported on a workshop hosted by his Government which attracted the participation of more than 30 indigenous participants from the Pacific region. The purpose of the so-called Suva Workshop was to strengthen capacity, and to disseminate as widely as possible information on the substantive aspects of the draft declaration and how it would affect indigenous peoples. The Suva Workshop had been unanimous in its full support for the draft declaration in its present form and, moreover, it had agreed that the existing language should be retained and, where possible, strengthened. Participants had also joined a general consensus that efforts by some States to undermine the existing language should be actively resisted by indigenous peoples and Governments supportive of them.
44. The representative of Mexico referred to article 1 of International Labour Organization Convention No. 169 and noted that the use of the term "indigenous peoples" should not imply rights that could be conferred in international law. He referred to the Mexican Constitution and in particular article 4 which recognized the multicultural composition of his country. He stressed that indigenous people had a right to development, which included the right to participate in economic, social, cultural and political development. He expressed the hope that the draft declaration would be based on existing human rights norms, in particular ILO Convention No. 169.
45. The observer for Finland stated that, contrary to what had been argued in the working group, Finland was of the opinion that the language of the draft declaration, which his Government believed to define minimum standards, was not at all incompatible with corresponding United Nations instruments. With regard to the obligations of States, the language of the draft was similar to that of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Finland supported the use of the term "indigenous peoples" since it made meaningful the great number of collective rights in the draft. Finland was also ready to accept the term "self-determination" since this right of all peoples was a fundamental principle of international law and carried with it a duty on the part of States to promote it. He referred extensively to recommendation No. XXI (48) of the Committee on the Elimination of Racial Discrimination which emphasized that one had to distinguish between internal and external aspects of the right to self-determination. According to the Committee, the internal aspect meant that all peoples had the right to pursue freely their economic, social and cultural development without outside interference, while the external aspect implied that all peoples had the right to freely determine their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition on subjecting peoples to alien subjugation, domination and exploitation. The Committee had pointed out that Governments should be sensitive towards the rights of persons belonging to ethnic groups but emphasized that the Committee's activities should not be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.
46. The observer for Switzerland reiterated the urgency of adopting a declaration of substance which, through its clarity and conciseness, would be widely understood and accessible and would be an important political signal by the international community. Her Government felt that there were enough elements available to understand the term "indigenous peoples", which her Government preferred, without defining it. Switzerland, with a tradition of federalism and direct democracy, was very sensitive to the rights of minorities and the cohabitation of different cultures free to define themselves, peacefully, as peoples. Switzerland, despite its diversity, had remained a unitary State through the application of the principle of subsidiarity which resulted in the cantons having broad powers, in particular with regard to education. Her Government believed that such a concept could also be applied to the situation of indigenous peoples.
47. The representative of the United States of America emphasized his Governments's strong support for the goal of protecting indigenous rights, both at home and abroad, particularly those pertaining to the freedoms of religion, speech and association. His Government viewed the adoption of a draft declaration as being of critical importance.
48. The observer for New Zealand said that to achieve a declaration that would be applicable to and for the benefit of indigenous people in all parts of the world, some very difficult issues had to be addressed by the working group. Not all the issues would be resolved at the current session. The process towards a consensus declaration would take time and would involve negotiation and compromise by all involved. She added that indigenous people had for a long time made a substantial effort in order to set clearly before the international community their views and objectives. It was appropriate, indeed essential, that their views continue to be registered in the working group. The representative noted that following the general election held in New Zealand on 12 October, negotiations were under way among the political parties represented in the new Parliament to determine who had the necessary level of support to form the next government. A convention on caretaker government currently applied and it was thus not appropriate for the delegation to make detailed statements on the New Zealand position for the time being.
49. The representative of Peru stated that his Government could accept the majority of the articles as adopted by the Sub-Commission but regarded certain articles as contradictory and impractical in their applicability. It was his Government's national experience that it was possible, through constructive dialogue, to develop practical solutions that guaranteed indigenous peoples different high levels of self-government which took into account the concerns and rights of States. In order to come to precise formulations within the draft, especially with regard to self-determination, it would be necessary to simultaneously advance towards a solution with respect to some Governments' concerns with regard to the absence of a definition of "indigenous peoples". The representative of the Russian Federation stated that many articles of the draft were acceptable to his Government but that some needed modification.
50. The observer for the International Labour Office stated that, while ILO Convention No. 169 had been adopted as a minimum standard for the protection of indigenous peoples in the countries where they lived and to establish procedures by which their active participation in the economic and social life of their countries was ensured, the working group had the task of framing an inspirational document that could reflect the hopes of indigenous peoples. It was therefore essential that the declaration, once adopted, should not fall below the standards set in a very recent international convention, but should follow the guiding principle in the development of human rights law that each new instrument should be consistent with earlier instruments and constitute a progression. Referring to a previous statement, she reiterated that the ILO conventions dealing with indigenous and tribal peoples had encountered no particular problems of application because of their lack of definition. Instead, they laid down criteria by which their coverage in individual cases was determined, and left to the national parties to determine precisely the groups covered. ILO Convention No. 169 included the vital concept of self-identification which the ILO regarded as essential. She quoted a statement the ILO representative had made to the Sub-Commission's Working Group on Indigenous Populations in support of a recommendation put forward by the Chairperson-Rapporteur to the effect that those involved with the active participation of those directly affected must adopt some objective criteria to determine who was covered by international law without inserting an "external" definition into the declaration. Finally, the ILO representative offered to share the ILO's experience in achieving the indigenous peoples' participation in the ILO's own standard-setting on this subject.
51. The observer for Argentina expressed support for the efforts being undertaken by the working group and stressed that the Argentine Constitution, amended in 1994, expressly recognized the ethnic and cultural pre-existence of the Argentine indigenous people, recognized the right to a bilingual and intercultural education, their juridical personality, and the possession and communal property of the lands that they traditionally occupied. Besides, the Congress was to legislate on the lands to be granted and on indigenous participation in decisions concerning natural resources and other interests that might affect them. The constitutional amendment was the result of constructive dialogue and active participation of the interested parties and that is why she envisioned a declaration that should satisfy the aspirations of the indigenous peoples and, at the same time, receive international support. This was the spirit that must prevail.
52. The representative of Bangladesh stated that the envisaged declaration was to be a universal declaration covering the situation of all indigenous people of the world. The text had evolved from a region-specific situation and there was scope for further strengthening the draft so as to reflect appropriately the fullest range of the diverse situations of all indigenous people of the world, including indigenous people who, as a result of the process of decolonization, had attained statehood.
53. The observer for the Grand Council of the Crees said that it wanted the working group to recommend to the Commission on Human Rights that it approve the text as approved by the Sub-Commission without changes, deletions or amendments. Each item in the draft was based on the experience of indigenous peoples and was the product of substantial compromise on their part and, as such, could only provide a minimum standard of protection of rights. The draft did not create special rights for indigenous peoples but at least corrected the fact that existing human rights instruments had failed to protect the rights of indigenous peoples. The declaration was therefore directed to the effective and full application of international standards to all peoples, including indigenous peoples, and with that in mind, nothing in the draft should offend the sensibilities of any State or Government that valued and respected the human rights of all peoples. The Grand Council placed particular emphasis on respect for the exercise of the right of self-determination of indigenous peoples, and on the principle that States should respect the obligation to obtain the full and informed consent of indigenous peoples before they commissioned any procedures which affected their territories or environment. He cited the threat of unilateral breakaway from Canada of the Province of Quebec and its effects on existing constitutional, citizenship and treaty rights, and the consequent denial of the right to self-determination as an example which demonstrated the need for the full exercise of self-determination by indigenous peoples.
54. The observer for the Cordillera Peoples Alliance stated that the draft declaration constituted a minimum standard for the protection of the rights of indigenous peoples and called upon the working group to adopt the text as it stood. The Lumad Mindanaw Peoples Federation also supported adoption of the draft declaration without changes.
55. The observer for the Saami Council stated that the draft represented minimum universal standards for the rights of indigenous peoples and should therefore not be weakened. He considered adoption a matter of urgency. The Saami Council saw a clear causal link between the absence of a universal instrument protecting the rights of indigenous peoples and the problems faced by indigenous peoples. It was possible to resolve any questions relating to the right of self-determination and indigenous rights over lands and related resources if all were willing to interpret them in the right context based on the situation of indigenous peoples. He referred to the principle of equality of indigenous peoples with other peoples.
56. The observer for the Chittagong Hill Tracts Peace Campaign stated that the draft was the minimum standard to promote and protect the rights of indigenous peoples. He expressed his concern that some Governments wanted to define indigenous peoples in an attempt to water down the draft.
57. The observer for the Indian Confederation of Indigenous and Tribal Peoples stated that the draft was an expression of the minimum acceptable standards of the rights of indigenous peoples and called upon the working group to recommend immediate adoption so as to enable it to be a true instrument of empowerment to the indigenous peoples, enabling them to determine their own future as equal partners in the world community.
58. The observer for the New South Wales Aboriginal Land Council in a joint statement with several other indigenous organizations from Australia stated that the right of self-determination was undeniably the cornerstone of their indigenous rights and the inclusion of a weakened expression in the draft would be unacceptable not only to indigenous peoples but also to others who supported the indivisible, universal and non-discriminatory nature of human rights. The collective nature of indigenous rights were a direct application of the right of self-determination and a direct expression of their right to exist as distinct peoples. Although the draft did not entirely reflect their positions they supported it as an articulation of minimum standards. The reasons for these broad positions were that the draft was a comprehensive articulation of interrelated principles which had been identified over decades, that the principles in the draft were drawn from presently recognized international human rights law, that they had been analysed in the context of the historic and continuing violation of these rights, that the principles offered guidance as to how to remedy this situation, and that the participants in the process of elaboration had included indigenous peoples, various non-indigenous non-governmental organizations, independent internationally recognized scholars, lawyers, and governmental and intergovernmental representatives.
59. The observer for the Indigenous World Association stated that the draft was only a step forward in addressing the subjugation of indigenous peoples and was the framework for treating indigenous peoples with respect and gave them the protection they must have in order to survive under repressive nation-States. It provided indigenous peoples with a legal basis through which they could insist on the protection of their collective rights and their right to political, economic and cultural survival. He therefore insisted on adoption as minimum standards, without dilution, and stated that it must not take another 12 years of debate before adoption.
60. The observer for the International Organization of Indigenous Resource Development stated that the draft was an accurate statement of customary international law and practice and that the rights therein had arisen from history and morality. Elaboration of the draft was not a legalistic exercise but one of declaring important human rights. Indigenous peoples fell at the bottom of every indicator of social and economic well-being owing to the fact that their right to self-determination was not recognized. Self-determination was a basic human right that all indigenous peoples had by virtue of their existence and meant nothing more than the ability of a group to survive with its own identity. Another observer for the same organization stated that the right of self-determination was fundamental to all their work. He also stated that the related fundamental principle of consent was of major importance and that treaties were international agreements reflecting a nation-to-nation relationship with the Crown. The spirit and intent and indigenous understanding must be honoured and respected. As far as indigenous peoples were concerned, treaties were evidence of the right of self-determination. He called upon the working group to recommend to the Commission on Human Rights, the Economic and Social Council and the General Assembly that the draft be approved as it presently stood.
61. The observer for the Ikce Wicasa Ta Omniciye maintained that in order to ensure that the declaration was not used as a tool for the destruction of indigenous peoples, the existing language must remain without amendment and requested that the draft be adopted as the minimum standards of protection of the rights of indigenous peoples and nations.
62. The observer for the Aboriginal and Torres Strait Islander Commission reiterated the statement of the Aboriginal and Torres Strait Islander Social Justice Commissioner on behalf of indigenous delegations from Australia. He stated that the draft reflected a consensus of all the participants in the elaborating process on the historical and contemporary experiences of indigenous peoples, on their perspectives and aspirations and as such was neither theoretical nor abstract but represented the absolute minimum standard of protection. Furthermore, the draft did not create any special rights or privileges but instead sought to correct the fact that international standards had not been applied equally to all peoples and that international human rights instruments had failed to protect indigenous rights and freedoms. He recalled that the joint position of the indigenous delegation from Australia was that the integrity of the draft depended upon an unqualified recognition of the right of indigenous peoples to self-determination as the pillar upon which all other provisions of the declaration rested. The language of article 3 must remain unaltered. Without recognition of their collective rights as peoples, the declaration could not adequately protect their most basic interests; the article was thus an indispensable feature of the draft. Individual human rights would not be weakened by a reference to collective rights of indigenous peoples, but instead would complement, and indeed strengthen, the individual rights of 300 million indigenous persons. Referring to article 2, 4(a) and 14 of the International Convention on the Elimination of All Forms of Racial Discrimination, article 6(1) of the 1978 UNESCO Declaration on Race and Racial Prejudice, articles 19-24 of the African Charter on Human and Peoples' Rights, the international prohibition of genocide, as well as rights to peace, permanent sovereignty over natural resources, a clean and healthy environment, development and self-determination, he stated that the draft was not the first international instrument to attribute rights to collectivities.
63. The observer for the Miccosukee Tribe of Indians of Florida stated that as the world continued to democratize, we must not forget to recognize the rights of indigenous peoples and should therefore unanimously approve the 45 articles of the draft.
64. On 1 November 1996, the United Nations High Commissioner for Human Rights, Mr. José Ayala Lasso, addressed the Working Group at its closing meeting. He reaffirmed the interest of his Office in the ongoing work on the draft declaration and offered to facilitate informal consultations and information meetings to promote greater understanding of the draft declaration. He expressed the hope that the draft declaration would be adopted by the General Assembly within the Decade. He also referred to his decision to establish, in the light of the restructuring of the Centre for Human Rights, an indigenous project team to coordinate these activities.
65. In his closing statement, the Chairperson-Rapporteur of the Working Group, Mr. José Urrutia, stated that the delegations of Governments and indigenous peoples representing millions of human beings were undertaking a fundamental and innovative process which would produce important changes in contemporary international law. He underlined the importance of looking for new and imaginative ways of strengthening the participation of indigenous peoples in the working group. He also stressed the need for flexibility and dialogue between all the participants. In his capacity as chairperson, he undertook to hold informal consultations with representatives of Governments and indigenous organizations over the ensuing 12 months, in order to build upon the dialogue that had been initiated. He expressed his appreciation to the spokesperson of the indigenous caucus for his constant willingness to have open dialogue and acknowledged the support provided by the secretariat team.
Articles 12, 13 and 14 and articles 24 and 29
66. The representative of Brazil stated that his Government supported wholeheartedly articles 12, 13 and 14 since they were essential to the survival of indigenous people. However, they deserved further elaboration considering the overall question of intellectual property in the declaration and the possible contradiction with national and international laws. In that respect he suggested deleting the words "archaeological and historical sites" in article 12 in light of a national responsibility for preservation.
67. The representative of France expressed the general concern that the declaration must be in accordance with other human rights standards. In light of this, she stated, the objective to protect indigenous traditions and customs as laid down in articles 12, 13, and 14 did not pose a problem in principle but rather in practice where these traditions were not in line with human rights standards or national law. She also stated that the application of article 14 could not prevent the use of the national language.
68. The representative of Japan stated that with regard to article 12 property ownership and expropriation under national law had to be taken into account. With regard to the second paragraph of article 13 he said that politics had to be separate from religion. He pointed out that a declaration was by definition non-binding and therefore the phrase "shall take effective measures" in the second paragraph of article 14 was too strong. He furthermore stated that his Government supported the use of the term "indigenous people".
69. The observer for Switzerland stated that the declaration had to be in conformity with human rights standards. She referred to the Universal Declaration of Human Rights as a cohesive human rights instrument which, therefore, had been widely disseminated. She said that articles 12 and 13 had to be redrafted so that they would read better, were not repetitious and were easier to understand. She also stated that the second paragraph of article 14 went beyond protection and should therefore form a separate article to underline its importance.
70. The representative of Ukraine requested clarifications with regard to the second paragraph of article 14 as the wording, style and sense were not very clear. She pointed out that indigenous people, in general, did not get involved in legal proceedings. In her understanding, that part of the article aimed at establishing a mechanism to the protect political and civil rights of indigenous people. She said that further work was necessary on articles 12, 13 and 14.
71. The representative of China stated that articles 12, 13 and 14 were important and agreed with their contents. However, since they contained cultural rights they should be placed after Part VI of the draft which contained civil and political rights. Articles 16, 24 and 29 and articles 12, 13 and 14 dealt with similar rights and should therefore be grouped together.
72. The representative of Mexico stated that article 14 should be placed in a broader framework and suggested comparison with article 12 of ILO Convention No. 169 with regard to access to justice. She supported the suggestion made by the observer for Switzerland. The representative of Ecuador stated that in principle his Government had no objections to articles 12, 13 and 14 but that he would be receptive to more precise wording.
73. The representative of Chile stated that his Government could adopt the present wording of articles 12, 13 and 14 without much difficulty. He considered the suggestion of the representative of Brazil to delete the words "archaeological and historical sites" not very well founded. He suggested looking for new wording that took the concerns into account but retained the two concepts. He also suggested adding to article 12 a paragraph similar to that of the second paragraph of articles 13 and 14 to allow States to determine how to protect and preserve.
74. The observer for the Grand Council of the Crees reminded participants of the practical importance of articles 12, 13 and 14 and that the articles were not abstract but placed in the draft because of specific problems indigenous peoples faced which had not been adequately protected by existing international instruments. With regard to a concern expressed by the representative of France, he stated that nothing in the draft prevented the use of the national language.
75. The representative of Malaysia said that his Government accepted the general thrust of articles 12, 13 and 14. With regard to article 12, he said that he shared the concern of the representative of Japan concerning property ownership and requested that a clear definition of "spiritual property" be provided. Concerning article 13, he said that the right to repatriation had to be qualified according to the circumstances and more narrowly defined. He said that the "measures" to be taken by States according to the second paragraph of article 13, should be defined. He also requested further clarification of the second paragraph of article 14 which he considered vague; the term "political proceedings" was unclear.
76. The observer for Sweden said that her Government had some difficulties with regard to "restitution" as found in article 12 and suggested the deletion of the text after the word "literature". She said that the traditions referred to in article 13 should not conflict with universal human rights norms and suggested insertion of the phrase "in accordance with recognized human rights norms" after the word "ceremonies". The second paragraph of article 14 was unclear in its use of the phrase "where necessary" and that measures only had to be taken when there was a real problem of communication.
77. The representative of the Philippines stated that the second paragraph of article 14 should be clarified and suggested that articles 12, 13 and 14 be consolidated in one or two articles. Her Government shared the concerns expressed by the representative of Brazil concerning the protection of archaeological and historical sites and also raised the issue of the meaning of spiritual property.
78. The representative of the Netherlands associated himself with the concerns of the Governments of France, Switzerland and Sweden that the exercise of the rights contained in articles 12 and 13 could not run contrary to general human rights law. He therefore suggested the inclusion of a safeguard clause.
79. The representative of Brazil fully supported adoption of article 24 as it stood, considering that the issue of traditional knowledge was of the utmost importance. Article 29 needed to be strengthened; he proposed the addition of a third paragraph which would read: "They also have the right to a fair and equitable sharing of the benefits arising from the utilization, including commercial utilization, of their traditional knowledge."
80. The representative of Canada stated that article 12 identified two elements: the protection and development of culture, and the restitution and return of property, which perhaps should be addressed in two separate paragraphs. His delegation considered that States should facilitate, subject to national laws, the efforts of indigenous people to maintain, protect and develop manifestations of their cultures, while respecting the legitimate rights of others. There was a positive evolution at both the international and national levels with respect to the return of cultural property on which the provisions of the declaration should build. With regard to article 13, he noted that Canada supported the principles though access to sacred sites in privacy would require a balancing of interests which respected the legal rights of others under domestic laws. He also stated that his delegation fully agreed with the principle contained in the first paragraph of article 14. The second paragraph dealt with civil and political rights, rather than cultural, religious and linguistic rights, and he suggested it be moved to Part V of the draft. He believed that on this issue there should be consistency with international instruments, notably international humanitarian law. It was unclear what "other appropriate means" might be. Furthermore, Canada did not agree with the suggestion of the Technical Review to move article 24 to Part III, considering that traditional medicine's complementary use could be better emphasized by leaving the article in Part V. He suggested a broad interpretation of the second paragraph of article 24 to address the issues of nutrition, pre- and postnatal care and substance abuse. He suggested adding a paragraph on children in Part V. He added his support to the suggestion of the Technical Review that article 29 on intellectual property be moved to Part III. At present, only a broad statement of principle should be included to the effect that indigenous people had the right to a fair and equitable sharing of the benefits arising from commercial utilization of their knowledge along with an acknowledgement of the rights of third parties. The working group must also take account of the outcome of ongoing and future work in other forums.
81. The observer for Finland stated that the second paragraph of article 14 should be amended to the effect that indigenous peoples could use their own language, not just one they could understand. He also stated that the contents of article 29 were encouraging.
82. The representative of France stated that the right to traditional medicines and health practices as contained in article 24 should be in line with standards of public health set by organizations such as the World Health Organization. The scope of the right to the "protection of vital medicinal plants, animals and minerals" contained in article 24 should be defined. Article 29 contained provisions for positive discrimination and thus gave rise to certain concerns. She also wanted more discussion and clarity on the measures to be provided by States.
83. The representative of Australia said that all the comments by his delegation were preliminary and that his Government would wish to give further consideration to the draft before taking final positions. He expressed his Government's concerns over the rights of third parties to ownership within the framework of article 12. He also expressed a general concern with regard to the feasibility and practicality of restitution concerning past acts and pointed out that there was a link with article 27 that dealt with restitution of land. Article 13 was generally consistent with international and domestic Australian law but he would wish an exchange of views on the content of the term "intellectual property". With regard to article 14, he expressed concern with regard to eventual resource implications and stated with regard to the second paragraph that the phrase "whenever any right of indigenous peoples may be threatened" was too broadly worded, especially the word "may". The second paragraphs of articles 13 and 14 were prescriptive and therefore did not belong in a declaration. Furthermore, in a federation it was not just the central Government that had to take measures to protect rights. On article 24, he requested further clarification with regard to the right laid down in the first paragraph and also wished to know the meaning of the term "special measures" in the second paragraph of article 29. In that respect he wondered whether this term carried the same meaning as in the International Convention on the Elimination of All Forms of Racial Discrimination. He concurred with the representative of Canada that recent and ongoing developments had to be taken into account with regard to the protection of intellectual property, particularly under the Convention on Biological Diversity.
84. The representative of Peru stated that his Government fully agreed with the text of article 24 but considered that article 29, although fundamental, could be improved and strengthened. In that respect, he referred to the proposal by the representative of Brazil to add a paragraph as being positive.
85. The observer for Argentina suggested more precision concerning the laws implied because the amended Constitution provided for pluralism and the respect of culture and tradition. In that sense, she proposed substituting "their" laws for "the" laws in order to achieve greater clarity in this important issue. All articles were broadly consistent with human rights instruments but the latter part of article 14 should be more precise, especially if it was to take into account the financial possibilities of States. The application of article 24 was important and necessary but should not contravene public health regulations.
86. The representative of Malaysia expressed support for article 24 but wanted further discussion on the scope of the rights to use traditional medicines and health practices to ensure that they did not harm the health of the practitioner. With regard to article 29, he expressed doubts as to the phrase "special measures".
87. The observer for the International Organization of Indigenous Resource Development suggested specific wording for articles 12, 13, 14, 24 and 29 by reading out the text of the articles in the draft.
88. The observer for the International Indian Treaty Council called for the adoption of the draft as adopted by the Sub-Commission as minimum standards for the protection, promotion and recognition of the rights of indigenous peoples. She wanted to put on record that her organization opposed any changes in the wording of articles 12, 13, 14, 24 and 29 as they were an integral part of the draft.
89. The observer for Tupaj Katari stated that article 12 tried to establish legal protection for cultural traditions and customs in order to preserve the identity of indigenous peoples. The Special Rapporteur on the protection of the cultural heritage of indigenous people had placed her study within the overall framework of self-determination and the working group should do the same. He suggested moving articles 24 and 29 to Part III. The observer for Ikce Wicasa Ta Omniciye stated that the text of articles 12, 13 and 14 as minimum standards, should not be amended.
90. The representative of the United States of America expressed his support for the basic thrust of the articles. However, the wording of article 12 was overbroad, in particular the open-ended obligation of restitution of cultural and similar property which at present was not a rule of international law. His Government supported articles 13 and 14 and believed that they could be adopted with some minor drafting changes emphasizing the aspirational nature of the document. His Government also believed that article 13 could be strengthened by adding the phrase "and associated funerary articles" at the end of the first paragraph. With regard to article 29, he said that individuals belonging to indigenous populations should be accorded rights with respect to intellectual property but that the second paragraph appeared to extend the right of indigenous people beyond those normally accorded to other members of the State.
91. The representative of the Russian Federation expressed support for the statement of the observer for Sweden that the declaration could not contradict existing human rights, and noted that a balanced approach must be taken between national laws and the rights of indigenous people. His delegation had no substantial objections to articles 12, 13 and 14. The second paragraph of article 14 needed some work and could perhaps be regrouped with articles 24 and 29. The second paragraph of article 24 could be redrafted to make its central aim of health protection clearer and could be grouped with article 28 which contained similar language. With regard to article 29, he believed that an exhaustive list was unnecessary and that general terms would serve the objectives of the document better.
92. The observer for the Indigenous Woman Aboriginal Corporation noted that the draft did not invent new human rights standards: articles 14.3, 18.1 and 27 of the International Covenant on Civil and Political Rights, article 18 of the Universal Declaration of Human Rights, article 1 of the Declaration on the Elimination of All Forms of Racial Discrimination, articles 12 and 28.3 of ILO Convention No. 169, and article 14.3 of the Declaration on Minorities were all similar to articles 12, 13 and 14. She also said that translation of needs and aspirations into rights did not always allow for the use of similar language in other instruments. In response to governmental concerns over the resource implications of certain articles, she pointed out that the implementation of all rights had resource implications. With regard to governmental concern over possible contradiction between the draft and existing human rights standards, she called for more respect from Governments when they spoke of cultures they had little knowledge of. Aboriginal customary law was dynamic, and certain rights in the draft, such as those in articles 1, 5 and 8, ensured consistency.
93. The representation of Chile pointed out that Chile looked at article 24 as a right of indigenous peoples to their traditional medicines and health practices using their plants and animals, while the second paragraph provided them with a choice of health care. His Government generally supported article 29 but noted that the Spanish version read "Tienen derecho a que se adopten medidas especiales" while the English version, which he regarded to be the original, read "They have the right to special measures." He urged the secretariat to review the different language versions to avoid discrepancies.
94. The observer for Norway noted that Part III was perhaps the least problematic of the draft. Norway supported article 12 but would like to see certain terms, such as restitution, clarified. With regard to article 13, he also expressed support but requested a more careful formulation to take into account the need for privacy in other areas than religion. Concerning article 14, he noted that the second paragraph had been taken from article 12 of ILO Convention No. 169. Care should therefore be taken that any amendment to this language did not weaken the principle. He suggested that articles 24 and 29 be moved to Part III.
95. The observer for the Cordillera Peoples Alliance said that articles 12, 13 and 14 were all very important in light of efforts undertaken to control indigenous knowledge, traditional medicine, and cultural and ceremonial expressions of indigenous peoples by national and international corporations. She called for the adoption of the draft without amendment.
96. The observer for the Chikasaw Nation said that the working group would do well to take the opinions of indigenous peoples into account considering that the United Nations might not be well informed about their problems, while their ideas came from experience. He called for the adoption of articles 12, 13 and 14 without amendment.
97. The observer for the World Council of Churches suggested changing the phrase "religious and spiritual property" to "religious and spiritual assets" in article 12. With regard to article 13, he felt it would be appropriate to add the words "communally" or "collectively" after the phrase "in privacy" since the ceremonies referred to were usually held that way. Concerning article 29, he noted that the phrase (as drafted in the Spanish version) was a reflection of the right of self-determination.
98. The observer for the New South Wales Aboriginal Land Council presented a joint statement on behalf of the Australian indigenous delegations. He stated that article 24 did not create new standards and referred in this respect to article 12 of the International Covenant on Economic, Social and Cultural Rights and article 25 of ILO Convention No. 169. He also stated that article 29 did not create new standards and referred to chapter 26 of the Rio Declaration, the preamble and article 8 (j) of the Convention on Biological Diversity, principle 13 adopted at the Fourth General Assembly of the World Council on Indigenous Peoples, the Mataatua Declaration on Cultural and Intellectual Property Rights, and the Suva Workshop held recently in Fiji.
99. The observer for the World Council of Indigenous Peoples stated that the indigenous heritage should be protected within the boundaries of States and called for the adoption of articles 24 and 29 as they stood.
100. The observer for the Indigenous World Association also called for the adoption of articles 24 and 29 especially in light of his concerns about the continued development of archaeological science and its effects on indigenous peoples' sacred sites.
101. The observer for the Association nouvelle de la culture et des arts populaires called for the adoption of articles 12, 13, and 14 as drafted since they were of critical importance.
102. The observer for the Chittagong Hill Tracts Peace Campaign stated that cultural rights depended on political rights and that therefore the draft should be considered as a whole.
Articles 1, 2, 42, 43, 44 and 45
103. The representative of the United States of America said that article 1 was acceptable and should be widely supported, subject to satisfactory resolution of the use of the term "peoples". It was important to emphasize that indigenous people, like all persons, were entitled to enjoy all basic human rights and fundamental freedoms. His Government found the general thrust of articles 2, 42 and 44 acceptable. Article 42 might encourage States to take measures beyond the rights affirmed and the policies agreed to in the declaration. Article 43 was acceptable as drafted.
104. The observer for New Zealand expressed support for the intent of articles 1 and 2 and for article 43, and said that it was important that the rights and freedoms referred to in the draft declaration should apply equally to female and male indigenous people. The principles underlying articles 42, 44 and 45 were acceptable. However, it was important to ensure that the language in the draft declaration was consistent with existing international human rights instruments.
105. The observer for Finland expressed strong support for articles 1, 2, 42, 43, 44 and 45. Article 43 could be moved to Part I of the draft. Besides that, the six articles were acceptable without any amendments, changes or deletions. It was also important that the draft declaration should define minimum standards for the survival, dignity and well-being of indigenous peoples, and that it complement and strengthen existing rights pertaining to indigenous peoples.
106. The representative of China said that the draft declaration should not be diluted if it was to give effective protection to indigenous people. A definition of the term "indigenous people" should be included in Part I of the draft declaration in order to identify the beneficiaries of the draft. "Indigenous people" could be defined as follows: "(i) the original peoples inhabiting certain countries or geographical regions and their descendants when these countries and regions have been colonized, conquered, occupied and ruled by colonial settlers from other countries, and these peoples retain some or all of their own social, economic, cultural and political institutions; (ii) peoples inhabiting exclusively certain geographical regions with a unique style of living, and thus regarded as indigenous by other inhabitants and Governments of the countries in which they live, and they identify themselves as indigenous". Article 2 should be strengthened and the words "adverse discrimination" be replaced with stronger wording saying that indigenous people should be free from any practices aiming to discriminate against them and that all such practices must be eliminated.
107. The representative of Brazil expressed support for the intent of articles 1, 2, 42, 43, 44 and 45. Article 1 should be adopted as it stood, while article 2 could be improved by deleting the last part of the sentence after the words "dignity and rights" as it was redundant. With regard to article 42, the term "minimum standards" should be replaced with the term "indicative standards". The language in articles 43, 44 and 45 was endorsed.
108. The representative of France made references to his Government's positions expressed at the first session (1995) of the working group. He stated that collective rights did not exist in international human rights law, and therefore his Government had reservations with regard to those articles which aimed to establish collective rights. In their view, human rights were individual rights.
109. The representative of the Netherlands expressed concern about a possible imbalance between individual and collective rights as presently stated in articles 1 and 2. Many of the collective rights accorded by the draft declaration as currently drafted would not be applicable to individuals. The inclusion of a general safeguard clause for individual rights in the draft should be considered. Article 8 (2) in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which said that the exercise of the rights set forth in the Declaration shall not prejudice the enjoyment by all persons of universally recognized human rights and fundamental freedoms, was suggested as a model for such a cause.
110. The representative of Denmark expressed strong support for articles 1, 2, 42, 43, 44 and 45 as presently drafted, and reiterated support for the entire draft in its present form. His Government did not support the idea of including a definition of "indigenous peoples" in the draft declaration.
111. The representative of Australia said that there appeared to be no significant difficulties with articles 1 and 2. Article 1 was straightforward, while the provisions of article 2 were already included in Australian legislation. Collective rights, including the use of the term "indigenous peoples", did not create any problems for Australia. Articles 43 and 44 were also acceptable. Articles 42 and 45 should be elaborated further.
112. The representative of Japan expressed support for articles 1, 2, 42, 43, 44 and 45. However, he also expressed support for the view expressed by the Government of France that human rights were individual rights. The representative of Japan also expressed the view that a definition of "indigenous people" should be included in the draft declaration, and suggested that the definition proposed by the Special Rapporteur José Martínez Cobo or the relevant provisions in ILO Convention No. 169 could be used as a basis for discussion in that regard. The definition should be flexible in accordance with the diverse situations of the world's indigenous people.
113. The observer for Sweden expressed general support for articles 1, 2, 42, 43, 44 and 45. However, the delegation also associated itself with the view that human rights were individual rights only.
114. The representative of the Russian Federation expressed support for articles 1, 2, 42, 43 and 44. However, the wording of the references in Article 1 to the Charter of the United Nations and other instruments should be brought into conformity with the wording in other human rights instruments. The representative expressed reservations with regard to the concept of "future rights" in article 44, and wondered whether article 45 should be included in its present form. The wording of article 9 (2) of the Declaration on the Right to Development could be included in the draft declaration.
115. The representative of Mexico expressed support for the contents of articles 1, 2, 42, 43, 44 and 45. With regard to article 42, the legal scope of the provision should be emphasized.
116. The representative of Peru expressed support for all six articles. However, article 43 should be moved to Part I of the draft declaration. Article 1 of ILO Convention No. 169 could be considered for inclusion in the draft.
117. The representative of Canada said it was important that the articles be coherent and consistent with existing human rights instruments. A provision on individual rights should therefore be included in article 1. Recognition of certain rights of indigenous people as collective rights merited further consideration and this should be done on an article-by-article basis. He also expressed support for the content of article 2. The terminology in the draft declaration dealing with individual and collective concepts should be closely reviewed. Article 42 should be considered in connection with article 37, keeping in mind the need for flexible and progressive implementation. Canada supported the proposal to move article 43 to Part I. Canada would interpret article 45 as referring to, inter alia, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.
118. The observer for Norway expressed strong support for articles 1, 2, 42, 43, 44 and 45, and supported the suggestion that article 43 be moved to Part I.
119. The representative of Chile expressed support for article 1. However, Chile would like to see the text harmonized with relevant provisions in ILO Convention No. 169. Chile supported articles 2, 43 and 44 as presently drafted. Further discussion on article 42 should be postponed until there was greater clarity on the content of the draft declaration. It was necessary to spell out the scope of article 45, owing to its impact on the interpretation of the right to self-determination.
120. The observer for the Association nouvelle de la culture et des arts populaires expressed his full support for articles 1, 2, 42, 43, 44 and 45, and emphasized that these provisions must be regarded as minimum standards. He pointed out that a definition of "indigenous peoples" could lead to the de facto exclusion of certain indigenous groups.
121. The observer for the International Organization for Indigenous Resource Development expressed the view that there should not be any problems with regard to collective indigenous rights, since individual and collective rights could exist side by side without any problems.
122. The observer for Inuit Circumpolar Conference (ICC) expressed full support for articles 1, 2, 42, 43, 44 and 45, and said that those articles could not be weakened. ICC also supported the entire draft declaration as it stood. The draft had to be regarded as a minimum standard for the rights of indigenous peoples.
123. The observer for the Aboriginal and Torres Strait Islander Commission, in a joint statement on behalf of indigenous organizations and indigenous representatives of Australia, expressed support for the articles under discussion, as well as for the entire draft declaration in its present form. The international community had not attempted to define the terms "peoples" and "minorities". Any attempt to exclude particular indigenous peoples from the protection of the draft declaration was opposed.
124. The observer for the Chittagong Hill Tracts Peace Campaign expressed his strong support for articles 1, 2, 42, 43, 44 and 45 in their present form. It was emphasized that the term "indigenous peoples" must be kept in the text of the draft declaration.
125. The observer for the Indigenous World Association stated his support for the entire draft declaration, including articles 1, 2, 42, 43, 44 and 45 which represented minimum standards for indigenous rights.
126. The observer for the Grand Council of the Crees identified the preamble of the draft declaration as an introduction to and interpretive element of the draft. He strongly supported articles 1, 2, 42, 43, 44 and 45. As to the question that all human rights were individual rights and that there was no need for collective rights, that was only one point of view and one which was not universally accepted. For instance, when racial discrimination was practised it was directed against groups, but individuals suffered because they were perceived to be members of the target group.
127. The observer for the Movimiento Indio "Tupaj Katari" supported articles 1, 2, 42, 43, 44 and 45. He expressed the view that nothing prevented indigenous peoples from having collective rights, and that these rights should be recognized in the draft declaration. Furthermore, there was no need for a definition of indigenous peoples. Some concrete suggestions aimed at improving the wording of the text were suggested, including to insert the word "born" between the words "are" and "free and equal" in article 2.
128. The observer for the International Organization of Indigenous Resource Development expressed support for articles 1, 2, 42, 43, 44 and 45 and read out the present text of those articles, which should remain unchanged.
129. The observer for the International Indian Treaty Council, the International Alliance of the Indigenous and Tribal Peoples of Tropical Forests, MAA Development Association, and Lumad Mindanaw Peoples Federation all called for the adoption of articles 1, 2, 42, 43, 44 and 45 in their present form, without any changes, amendments or deletions.
Articles 5, 9, 32
130. The observer for Fiji expressed strong support for the entire draft declaration as currently worded, including articles 5, 9 and 32. He expressed the view that a definition of indigenous peoples was neither necessary nor desirable. However, if the negotiations moved in the direction of favouring a definition, Fiji would argue strongly for a definition which was flexible and all-inclusive rather than one based on the historical and colonial experience of only some indigenous peoples.
131. The observer for Finland expressed support for articles 5, 9 and 32, and said that it was ready to adopt them as currently drafted. As to article 32, the observer referred to his delegation's statement at the first session (1995) of the working group, in which it stated that indigenous citizenship as proposed in article 32, in addition to the citizenship of the State of domicile, did not create any legal problems for Finland.
132. The representative of Brazil proposed that article 5 should read as follows: "Every indigenous individual has the right to the citizenship of the State to which he belongs." With regard to article 9, he proposed the following text: "Indigenous people have the right to belong to an indigenous community, in accordance with the traditions and customs of the community concerned. No disadvantage of any kind may arise from the exercise of such a right." He also expressed the view that the meaning of the term "nation", had to be clarified. Article 32 could be deleted without any problems, since the provisions were contained in other articles.
133. The representative of Australia said that there appeared to be no difficulty with article 5, which was a restatement of article 15 of the Universal Declaration of Human Rights and article 24 (3) of the International Covenant on Civil and Political Rights. Further discussion was needed on article 9 with respect to the inclusion and meaning of the word "nation". Australia would not be able to support the term "nation" if its meaning went beyond the concept of "first nations". Furthermore, there was a need to further clarify the meaning of the term "citizenship" in article 32, and how the term related to the use of the word "nationality" in article 5. The working group could explore the possibility of combining the second paragraph of article 32 with article 19.
134. The representative of Malaysia expressed support for article 5, while it said that articles 9 and 32 were not applicable for Malaysia. As to article 9, there was a need to further clarify the meaning of the word "nation".
135. The representative of Ukraine expressed general support for the draft declaration as the basis for elaborating a final version of the declaration. The first sentence of article 32 was not acceptable owing to its inconsistency with Ukrainian legislation.
136. The representative of Canada expressed support for the inclusion of article 5 in the draft declaration, and said that Canada understood this right to apply to nationality within an existing State. With regard to article 9, Canada recognized the importance of self-identification and community acceptance, but the notion of a "right to belong" needed some clarification as to how it would be consistent with existing human rights standards in international law. As to article 9, Canada suggested a more explicit reference to the right of each individual to a nationality. The declaration should be flexible enough to allow for varied and changing membership criteria. Also, the communities' right to determine membership, as with all other aspects of government, must be subject to an individual's rights to fairness. The Working Group should consider whether article 32 should be combined with articles 8 and 9, or whether the entire article was superfluous.
137. The representative of Ecuador stated that article 5 related to constitutional matters. In article 9 the term "indigenous nations" should be revised to avoid misunderstanding. As to article 32, Ecuador had problems with the term "indigenous citizenship" since in Ecuador they only had citizenship of the State.
138. The representative of the United States of America expressed support for article 5, and said that the right to a nationality was already enshrined in article 15 of the Universal Declaration on Human Rights and article 24 (3) of the International Covenant on Civil and Political Rights. However, the text of article 5 should be clarified to ensure that its scope concerned State nationality. With regard to article 9, the United States endorsed the concept that individuals had the right to self-identification and to exercise this right in community with others. The question of an individual's right to non-discrimination and due process in questions of membership was something the working group should look into. The United States agreed with the general thrust of article 32.
139. The observer for Norway expressed support for article 5, and said that such a provision was already included in the Universal Declaration on Human Rights, the Convention on the Rights of the Child and in the International Covenant on Civil and Political Rights. Norway also supported article 9. The provisions of article 32 should be clarified further, i.e. was it to be understood as giving an open-ended choice to determine nationality. However, the right to determine indigenous citizenship was said not to create any problems for Norway, as such a system had already been established in Norway via the Saami Electoral Register. It also should be considered whether article 32 could be merged with article 5.
140. The observer for Switzerland expressed support for articles 5, 9 and 32. As to article 9, the meaning of the term "nation" needed further clarification. The working group should consider merging article 32 with other relevant articles.
141. The observer for Sweden said that articles 5, 9 and 32 overlapped and that the provisions should therefore be clarified further. As to article 32, Sweden supported the view expressed by the representative of Australia that certain elements needed to be clarified, such as dual citizenship.
142. The representative of Japan expressed support for the Australian position on article 9, in particular regarding the concept of "nation". It also shared the concern expressed by the representative of Brazil on article 32.
143. The representative of the Russian Federation said that articles 5 and 9 were acceptable as currently drafted. The distinction between the term "citizenship" in article 32 and the term "nationality" in article 5 must be clarified.
144. The observer for Argentina expressed her support for the general thrust of article 5 whereby all indigenous people had the right to a nationality, a right already firmly established in international human rights instruments and in the Argentine Constitution which granted that right to all inhabitants. But as had been mentioned by various delegations, the declaration should state with precision that it referred to the nationality of the State or specify what other meaning it was implying. With regard to article 9, the term "nation" should be clarified further in order to avoid confusion with its internationally accepted meaning. On the other hand, the "right to association" was also established in the Constitution and should be exercised accordingly. As to article 32, the use of the term "citizenship" might cause confusion when referring to a person's membership in a community, because it had a precise juridical meaning which was not compatible with the one proposed in the text.
145. The observer for the International Organization of Indigenous Resource Development expressed support for articles 5, 9 and 32 by reading the present text of those articles and suggesting that they be kept unchanged.
146. The observer for the Aboriginal and Torres Strait Islander Commission expressed his strong support for articles 5, 9 and 32 as currently drafted.
147. The Aboriginal and Torres Strait Islander Social Justice Commissioner presented a joint statement on behalf of indigenous organizations and indigenous representatives of Australia, in which he expressed strong support for articles 5, 9 and 32.
148. The observer for the Saami Council expressed his strong support for articles 5, 9 and 32. He also referred to the statement by the observer for Sweden that Sweden associated itself with the view that human rights were individual rights only. The Swedish position with regard to collective rights was inconsistent with national Swedish legislation in which the Saami reindeer-herding rights were recognized as collective Saami rights.
149. The observer for the International Indian Treaty Council called for the adoption of the draft declaration as approved by the Working Group on Indigenous Populations and the Sub-Commission, in its entirety and without any changes, amendments or deletions, as minimum standards protecting and promoting the rights of indigenous peoples. She stated that her organization would not accept any changes whatsoever in the text or wording of articles 5, 9 and 32, as they were integral parts of the entire document as it now stood.
150. The observer for the Ainu Association of Hokkaido said that the draft declaration should be adopted by the working group as it stood. He emphasized that the draft declaration should be adopted without any definition of "indigenous peoples".
151. The observer for the MAA Development Association stated that the organization supported the present wording of articles 5, 9 and 32. The right to nationality (art. 5) was already found in article 15 of the Universal Declaration on Human Rights, article 24 (3) of the International Covenant on Civil and Political Rights and article 7 of the Convention on the Rights of the Child.
152. The observers for the World Indigenous Association, the International Alliance of the Indigenous and Tribal Peoples of Tropical Forests, the Association nouvelle de la culture et des arts populaires, the Comisión Jurídica para el Autodesarrollo de los Pueblos Originarios Andinos, and the Indian Confederation of Indigenous and Tribal Peoples all expressed their strong support for articles 5, 9 and 32 as currently drafted, and called for them to be adopted in their present form.
Articles 15, 16, 17 and 18
153. The observer for Estonia expressed support for articles 15, 16, 17 and 18. Her delegation did not have any problems with articles 16, 17 and 18. As to article 15, the representative underlined the importance of State-provided education, and stated that it was important that indigenous peoples had adequate opportunities to learn or have instruction in their mother tongue. The working group should consider a language which was closer to that of the provision in article 4 (3) of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.
154. The observer for New Zealand expressed support for the thrust of article 15. However, the working group might need to consider if account needed to be taken of the fiscal constraints operating upon States. Article 16 did not create any major problems. With regard to article 17, New Zealand expressed its support for the underlying intent of this article in so far as it confirmed that indigenous people had the same right as any person or group to establish their own media in their own language.
155. The representative of Brazil stated that article 15, which dealt with the important issue of the right to education, was generally consistent with Brazilian legislation. The establishment and control of educational systems and institutions by indigenous people could create some administrative difficulties. As an example, the representative mentioned that in Brazil there were around 170 different indigenous languages, and that most of them were spoken by fewer than 100 individuals. Article 15 should take into account this kind of problem. He emphasized that the main objectives of the article were to secure the right to all levels and forms of education including bilingual education. As to articles 16 and 18, Brazil supported their adoption as currently drafted. Brazil also generally supported article 17. However, it was proposed that the words "in accordance with national legislation and regulations" be included at the end of the first sentence of article 17.
156. The representative of Canada expressed support for article 15, and expressed the view that indigenous people should gain greater control over education. Education was important not only for children but also for youths and adults, and the scope of the first paragraph of article 15 should be expanded by referring to indigenous individuals. It might also be preferable if the article referred to "a right to access to education at all forms and levels". Furthermore, a new second paragraph of article 15 could affirm the right to establish and control educational systems and institutions providing education in indigenous languages in a manner appropriate to indigenous culture and which respected minimum educational standards. Indigenous children living outside their communities should have adequate opportunities to education in their own culture and language, where demand and resources allowed. Canada supported the provisions in article 16. However, further consideration is required. Canada also supported the provisions contained in article 17, but suggested that the second paragraph be moved to article 16. Canada also supported the content of article 18; however, the provision should be moved to Part V of the draft declaration. Article 18, which dealt with labour rights, should also refer to the rights of indigenous individuals rather than indigenous peoples. Moreover, Canada suggested the inclusion of a special reference to indigenous children in article 18, stating that indigenous children will be protected from economic exploitation or work which was harmful to the child's health, education or development. Reference to discriminatory conditions in article 18 should not affect a State's ability to implement affirmative action or equal opportunity programmes.
157. The representative of Chile expressed support for the principles enshrined in article 15. However, there was a contradiction in article 15 between the first paragraph, which said that indigenous people had the right to control their educational system, and the third paragraph, which obliged States to provide appropriate resources for these purposes. The language of article 17 should be revised. Chile supported the general thrust of article 18; however, the language should be revised in order to bring it into line with article 20 of ILO Convention No. 169.
158. The observer for Sweden expressed general support for articles 15, 16, 17 and 18, and emphasized the importance of Part IV of the draft declaration. The concept of the right to education, as stated in article 15, was of great importance. The representative referred to the goal of the International Decade of the World's Indigenous People, in which education is mentioned as one of the major aspects. Sweden expressed its support for the general thrust of the provisions of articles 16, 17, and 18.
159. The representative of France expressed concern with regard to article 15, and said that the establishment of a parallel educational system puts into question the existing legislative provisions which stated that State-provided education shall be given in French. As to article 17, France expressed its support for the principle of the freedom of expression. However, this right should be guaranteed for all individuals, including indigenous individuals, rather than indigenous peoples as such.
160. The representative of Peru expressed general support for article 15; however, certain aspects needed to be further clarified and brought into line with Part VI of ILO Convention No. 169. Peru did not have any problems with articles 16 and 17 as currently drafted. The general thrust of article 18 did not create any problems. However, article 18 could be strengthened by bringing it into line with article 20 of ILO Convention No. 169.
161. The representative of Japan indicated that his Government would have problems with the wording "States shall take effective measures" in articles 15, 16 and 17, and that the working group should therefore consider more appropriate wording for a declaration of a non-binding nature. As to article 15, the representative expressed support for the view expressed by the representative of France. With regard to articles 16 and 18, Japan required further clarification, in particular of the concept of international labour law in article 18.
162. The representative of Ecuador noted the provisions in the Constitution and that indigenous languages were used as the principal language of education in indigenous areas. The wording of article 18 should reflect the fact that international labour law was evolving and was not a set of static norms.
163. The observer for Finland expressed strong support for Part IV of the draft declaration, and emphasized the importance of having articles 15, 16, 17 and 18 in the draft.
164. The representative of Australia emphasized the importance to indigenous peoples of the right to education and of the right of indigenous communities to establish their own education systems, schools and media. In relation to articles 15 and 16, Australia had already progressed a long way towards providing opportunities for education in indigenous languages and the use of traditional teaching methods. Article 17 was largely consistent with current Australian policy and practice. However, the term "access" should be clarified further. The representative asked why the first paragraph was not confined to State-owned media as was the case for the second paragraph. Article 18 should be more clearly worded so as to ensure that indigenous peoples benefit from those international labour law instruments ratified by States.
165. The representative of Colombia expressed support for the general thrust of articles 15, 16, 17 and 18. The representative proposed that article 15 should begin in the following manner: "All indigenous peoples have the right to all levels and forms of State-provided education and the right to establish and control their educational systems and institutions providing education in their own languages and in accordance with their own teaching and learning methods. Indigenous children also have this right. Indigenous children living outside their communities shall have access to education in their own languages and cultures. States shall adopt effective measures to secure sufficient resources aimed at such purposes, and shall have the responsibility to guarantee the education and exercise of cultural diversity with regard to education." The following sentence should be included at the end of article 18: "States shall adopt adequate measures to respect cultural and ethnic diversity and shall take this into account in matters relating to labour conditions and standards."
166. The representative of the United States of America expressed general support for the basic premises of articles 15, 16, 17 and 18, and said that those articles were of key importance. As to article 15, non-discriminatory access to public education was a right that should be enjoyed by indigenous persons in common with other members of the community. Furthermore, indigenous persons should have the right to create and administer their own educational institutions, if they chose to do so. The United States supported the general premise of article 16; however, article 16, as currently drafted, infringed on freedom of speech. The United States supported the basic premise of article 17; however, special group access rights would conflict with most States' international agreements (governing radio frequencies) and domestic statutes (placing media ownership in private hands). Finally, the United States supported the basic goals of article 18. Indigenous persons should have the right to enjoy fully all rights established under domestic labour law and international treaties to which the State was a party, without discrimination on account of their indigenous origin or identity. It might be useful to include the "non-discrimination concept" in the first paragraph of article 18.
167. The observer for Bolivia expressed support for articles 15, 16, 17 and 18. The observer referred to principles and provisions in existing international instruments and in the Bolivian Constitution and legislation which already applied for indigenous peoples of Bolivia. As to article 15, Bolivia did not agree with the view expressed by the representative of France and it was necessary to involve indigenous peoples in the administration of the education system in order to fully guarantee the democratic nature of the education system. The text of article 16 should include the concept of respect for indigenous culture.
168. The representative of Malaysia expressed strong support for article 15, and said that the Malaysian Constitution stated that there shall be no discrimination on grounds of religion, race, descent or place of birth in the administration of any educational institutions. As to articles 16 and 18, Malaysia supported the general thrust of the provisions. With regard to article 17, the representative expressed general support; however, the scope of the obligation "to take effective measures" should be clarified further.
169. The observer for Argentina expressed general support for articles 15 and 18; however, the provisions should be more explicit. The Argentine Constitution guaranteed the right of indigenous populations to bilingual and intercultural education. The right did not discharge the State of its responsibility for education planning, monitoring and general control of the education system. The provisions of bilingual and intercultural education were of great importance. Article 18 should be further emphasized by adding the non-discrimination concept.
170. The observer for the International Organization of Indigenous Resource Development expressed his support for articles 15, 16, 17 and 18 by reading the present text of those articles and suggesting that it should be kept unchanged.
171. The observers for the MAA Development Association, the Union of Bolivian Indigenous Women, the Comisión Jurídica para el Autodesarrollo de los Pueblos Originarios Andinos, the World Council of Indigenous Peoples, the International Indian Treaty Council, the Indigenous World Association, the Society for Threatened Peoples, the Consejo de Todas las Tierras, the Indian Confederation of Indigenous and Tribal Peoples, the Association nouvelle de la culture et des arts populaires and the Chickasaw Nation all expressed their strong support for articles 15, 16, 17 and 18 as currently drafted, and called for the adoption of the draft declaration without any changes, amendments or deletions.
172. The observer for the Aboriginal and Torres Strait Islander Commission presented a joint statement on behalf of indigenous organizations and indigenous representatives of Australia in which he expressed strong support for articles 15, 16, 17 and 18 and called for the adoption of those articles as currently drafted. As to article 15 of the draft declaration, the observer referred to other international instruments where the right to education was protected: in article 26 of the Universal Declaration on Human Rights, article 13 of the International Covenant on Economic, Social and Cultural Rights, article 28 (1) of the Convention on the Rights of the Child, and article 26 of ILO Convention No. 169. He also referred to the following instruments with regard to the right to establish educational institutions: article 13 (3) and (4) of the International Covenant on Economic, Social and Cultural Rights, article 29 (2) of the Convention on the Rights of the Child, and article 27 (3) of ILO Convention No. 169. The provisions contained in article 16 had already been confirmed in existing international human rights instruments: in article 13 (1) of the International Covenant on Economic, Social and Cultural Rights, article 29 (1) (d) of the Convention on the Rights of the Child, article 4 (4) of the Declaration on Minorities, and article 31 of ILO Convention No. 169.
Articles 6, 7, 10 and 11
173. The observer for Sweden emphasized the importance of Part II of the draft declaration, and said that standards and principles in the draft should be in line with existing international instruments. Article 6 should be made as strong as possible, and it was necessary to look into other instruments in order to bring this article into line with them. Article 7 required further clarification regarding the concept of collective rights and how the collective rights contained in this provision should be secured. The wording "lands or territories" in article 10 needed to be clarified. Moreover, certain provisions in article 11 also needed to be clarified and article 11 should also include provisions pertaining to the protection of indigenous peoples during internal conflicts.
174. The representative of Colombia expressed support for the thrust of article 11. The representative proposed that the following should be included in article 11: "States shall adopt effective measures to guarantee the exercise of the collective rights of indigenous peoples to their territories and to autonomy during internal armed conflicts and to guarantee the neutrality of indigenous peoples in such conflicts when they rise and not to compromise their territories as the sites for the escalation of such conflicts."
175. The representative of Malaysia expressed support for articles 6 and 7. As to article 10, the representative expressed the view that an absolute prohibition on relocation from lands and territories would not be acceptable for his delegation, and that the provision therefore should be elaborated further. It was said that the wording "forcibly removed" should, therefore, be narrowly defined. With regard to article 11, in periods of armed conflict indigenous people should be treated like any other citizens.
176. The representative of Mexico expressed support for the general thrust of article 6. However, it was necessary to include provisions which allowed the authorities to remove indigenous children if, for example, they were being abused sexually. Under such circumstances the State was obliged to separate the children from their families to guarantee their well-being, whether they were indigenous or not. The words "any pretext" in the first paragraph of article 6 should be replaced with the words "without any justified cause".
177. The observer for Norway said that article 6 was not in conflict with existing international instruments; however, the article nevertheless might need to be revised. Articles 7 (b) and 10 should be moved to Part VI of the draft declaration. Certain ambiguities with regard to provisions dealing with land rights should be clarified. Articles 25, 26, and 27 referred to "lands and territories which they have traditionally owned or otherwise occupied or used" while article 10 spoke of "their lands and territories". He noted that article 16 of ILO Convention No. 169 spoke of "the lands which they occupy". Certain provisions in article 11 needed to be clarified.
178. The representative of the Russian Federation expressed support for articles 6, 7 and 10, although some editorial amendments were necessary. As to article 11, the representative said that his delegation would prefer to have more general provisions aiming to protect civilians rather than categorical demands.
179. The representative of France said that some of the articles would cause constitutional problems for France. In that regard, the representative mentioned that article 12 of the French Constitution guaranteed the right of equality before the law regardless of race or ethnicity. As to articles 7 and 10, France had problems with the use of the term "lands and territories". With regard to article 11, France could not accept that certain groups should have special protection and security.
180. The representative of Brazil said that his Government was ready to accept the general thrust of articles 10 and 11 (c); however, those provisions should recognize that displacements of communities might be necessary for their own safety in cases of war or catastrophe. Just and fair compensation had to be assured to displaced indigenous peoples.
181. The observer for Fiji expressed support for the concept of collective rights, which was used throughout the draft declaration including in articles 6, 7 and 8. The principle of collective rights was an integral component of indigenous societies and communities, and international human rights instruments recognized collective rights. In that regard, he referred to articles 5 and 14 of ILO Convention No. 169, article 2 (2) of the Declaration on the Right to Development, articles 19 to 24 of the African Charter on Human and Peoples' Rights, and article 6 (1) of the 1978 UNESCO Declaration on Race and Racial Prejudice.
182. The observer for Finland expressed support for articles 6, 7, 10 and 11. His delegation supported the views expressed by the observer for Norway and Sweden that the provisions should be made as strong and clear as possible and that the language should be brought into line with existing human rights instruments. As to article 11 (a), questions relating to the recruitment of indigenous individuals into the armed forces should be elaborated further.
183. The representative of Canada said that the issue of genocide and the removal of children referred to in article 6 should be considered in conjunction with article 7, and that the focus of article 6 should be on the guarantee of the right of indigenous individuals to life, liberty and security of the person. Article 7 would be strengthened if it contained a general reference to the Convention for the Prevention and Punishment of the Crime of Genocide. The representative indicated that the term "ethnocide" raised some concerns for Canada. The reference "lands and territories" in article 7 should be included in Part VI. With regard to article 10, there was some confusion regarding the use of the terms "removed" and "relocation". The representative expressed the view that "removed" would suggest a temporary move while "relocation" would suggest a more permanent move. The working group should consider moving article 10 to Part VI of the draft declaration. As to article 11, Canada expressed reservations with regard to the concept of the "right to special protection", and asked if indigenous people should have protection beyond that provided for under international humanitarian law. Article 11 could be an affirmation of the principle that in times of armed conflict, indigenous people had a right to all protections offered by international humanitarian law, in particular those included in the Fourth Geneva Convention. However, there might be circumstances in which special measures were required to ensure that indigenous people benefited from the protection offered by international humanitarian law, and the working group should consider including such a principle in the draft declaration. Canada supported the inclusion of the principle of prohibiting the use of indigenous people against each other in furtherance of domestic policies hostile to indigenous people. Subparagraph (c), which referred to "lands and territories", could be moved to article 10 or Part VI. Finally, the representative expressed the view that the issue of non-discrimination, contained in subparagraph (d), was adequately covered in article 2.
184. The representative of Japan said that certain elements in articles 6, 7, 10 and 11 had to be discussed further. As to articles 6 and 7, he reiterated the view that collective rights did not exist in international human rights law. Furthermore, his delegation had problems with the words "under any pretext" in article 6; the language should be brought into line with the language used in the Convention on the Rights of the Child. Articles 7 (b) and (c) and 10 should be discussed further.
185. The representative of Australia expressed general support for articles 6 and 7. As to article 7, the working group should seek further clarification of the meaning and scope of the term "redress". Furthermore, with regard to articles 7 (b) and 10, Australia supported the right of indigenous peoples not to be forcibly removed from their lands. In relation to compulsory acquisition of land, the Native Title Act ensured that just terms of compensation would be provided. As to article 11, the working group should further consider the term "special protection" for indigenous peoples. In the case of armed conflict involving Australia, it would be difficult to foresee a situation which would warrant indigenous people being given preferential treatment over and above that given to non-indigenous people, although this position was influenced by clarification of the meaning of "protection" in that context. Moreover, if the wording "special protection" referred to the fact that in times of armed conflict the possibility of genocide or ethnocide for indigenous communities was more serious than for non-indigenous communities, then consideration should be given in the discussion as to how special care could be taken to ensure protection for indigenous peoples and their cultural identities in that context. With regard to subparagraph (b) of article 11, the working group should take into consideration discussions on that issue in the working group on the draft optional protocol to the Convention on the Rights of the Child on involvement of children in armed conflicts.
186. The representative of Chile expressed support for article 6, and said that the draft declaration should clearly spell out the term "distinct people" and bring it into line with article 1 of ILO Convention No. 169. Chile expressed its support for the general thrust of article 7 (a), (b), (c), and (d). However, the representative expressed reservations with regard to the term "cultural genocide", owing to the very specific meaning of the term "genocide" under international law. With regard to article 10, any transfer or removal of indigenous people should take place only with their free and informed consent. The representative expressed reservations with regard to the term "territories". He also expressed reservations with regard to article 11, which was worded in a discriminatory way. However, Chile did not have any problems with article 11 (a) and (b).
187. The representative of Ukraine said that his Government did not have difficulties with articles 6, 7 and 10, and that with slight amendments they would be acceptable. However, the delegation was concerned by the general tone of isolationism and a certain aggressiveness of the draft declaration as a whole; a lack of a spirit of cooperation and dialogue between indigenous peoples, Governments and the international community. The delegation was of the opinion that claims for preferential treatment for indigenous peoples would not contribute to inter-ethnic peace and understanding in any society. Article 11 was, moreover, in contradiction with the Geneva Conventions of 1949 and with Ukraine's national legislation.
188. The representative of the United States of America referred to the detailed comments of his delegation on articles 6, 7, 10 and 11 at the first session (1995) of the working group, and reiterated its support for the basic thrust of those articles. He stated that article 6 raised a collective rights issue; it might be rephrased to provide for the protection of individual rights to security and integrity exercised in community with others. The representative also expressed concern that the terms "ethnocide" and "cultural genocide" in article 7 were not clear concepts that could be usefully applied in practice. He suggested that the provision could be rephrased to state that indigenous people had a right to be free not only from genocide but from actions aimed at destroying their rights to belong to the group and enjoy their own culture, language and religion. With regard to article 11, indigenous people should have the same right as non-indigenous people to protection during time of conflict. He also noted that the declaration should not derogate from the Geneva Conventions.
189. The observer for Argentina supported the articles under consideration but said that the term "territories" had a precise meaning in international law and was considered as an element of the State. For that reason article 75, paragraph 17, of the Argentine Constitution mentioned the word "lands" and therefore the wording of the draft declaration should be discussed further. His observations also applied to other articles where the term appeared (arts. 25, 26, 11 and 7). On article 11, there was no obligatory military service in Argentina but in a case of armed conflict or national emergency, it would not be fair or just to establish distinctions. The constitutional duty contained in article 21 of the Constitution stated that all citizens should defend the country and the Constitution.
190. The representative of Ecuador recognized the importance of the principles stated in articles 6, 7, 10 and 11. As to article 6, he suggested that the term "prosperity" should be included after the phrase "to live in freedom, peace and security". Moreover, the terms "distinct peoples" in article 6 and "territories" in articles 7, 10 and 11 should be clarified. Article 11 should be brought into line with the Geneva Conventions.
191. The observer for the International Organization of Indigenous Resource Development expressed his support for articles 6, 7, 10 and 11 by reading the present text of those articles and suggesting that the present text should be kept unchanged.
192. The observer for the Grand Council of the Crees expressed his strong support for article 10. Indigenous peoples and communities had time and time again been expelled from their lands or had had communities relocated without their consent; protection was required under international law.
193. The observers for the Chickasaw Nation, the National Aboriginal and Torres Strait Islander Legal Service Secretariat, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Central Land Council, the New South Wales Aboriginal Land Council, the Asociación Napguana, the Chittagong Hill Tracts Peace Campaign, the World Council of Indigenous Peoples, the International Indian Treaty Council, the Association nouvelle de la culture et des arts populaires, the Finno-Ugric Consultation Committee, the Cordillera Peoples Alliance, the Indian Confederation of Indigenous and Tribal Peoples, the World Council of Churches and the Lummi Indian Business Council all expressed their strong support for articles 6, 7, 10 and 11 as currently drafted, and called for their adoption without any changes, amendments or deletions. It was also emphasized that they considered articles 6, 7, 10 and 11 as minimum standards.
194. The observer for the Indian Law Resource Center expressed her strong support for articles 6, 7, 10 and 11. She said that the different articles represented distinct concepts. The representative referred to the concept of "integrity" in articles 6 and 7, and identified it as a fundamental principle in that context. The integrity of indigenous peoples and nations had been threatened throughout history. The representative said that the grouping of articles could be harmful, owing to the possible deletion or diminution of concepts or elements of concepts in the articles. Moreover, articles should not be grouped in the future.
Articles 19, 20, 22 and 23
195. The observer for the International Organization of Indigenous Resource Development proposed language for articles 19, 20, 22 and 23 by reading out the text of the articles as adopted by the Sub-Commission. The observer for the Indigenous World Association called for the adoption of the articles in their present form considering that they were valid rights of indigenous peoples.
196. The representative of Mexico stated that the articles under consideration dealt with some basic aspects of the working group's work, namely the participation of indigenous people in decision-making processes that affected them. Her Government supported the basic principles in the articles, which were in line with efforts undertaken at the national level. With regard to the second paragraph of article 22, the use of language was important. She suggested replacing the word "impedidos" in the Spanish version with "descapacitados".
197. The representative of Denmark and the Home Rule Government of Greenland expressed full support for the articles under consideration as they stood because they represented the basic elements for the enjoyment of political, civil, social, cultural and economic rights by indigenous peoples. He stated, furthermore, that democracy, development and respect for human rights and fundamental freedoms were interdependent and mutually reinforcing.
198. The observer for the World Council of Indigenous Peoples said that the element of free and informed consent as laid down in the second paragraph of article 20 was an integral part of the right to self-determination and crucial for the relationship between indigenous peoples and Governments on a basis of equality. This was not a new concept, it went beyond the individual and was intrinsic to democracy.
199. The representative of Canada stated that she understood that articles 19 and 20 were intended to state the right of indigenous individuals to participate in the general political processes of the States in which they lived without discrimination and were consistent with other international instruments including the International Covenant on Civil and Political Rights. However, reading article 19 to mean that indigenous individuals had special rights in relation to matters that affected them in the same way that they affected non-indigenous individuals would not reflect the purpose of the article. Articles 19 and 20 could be combined into one article reflecting the principle of the right to participate fully in public affairs, including participation in State decisions which directly affected certain areas of particular concern to indigenous people. She referred to article 25 of the International Covenant on Civil and Political Rights and article 2 of the Declaration on Minorities as sources of inspiration. She also stated that concerning the right to an adequate standard of living as laid down in article 22, the principle contained in article 11 (1) of the International Covenant on Economic, Social and Cultural Rights could be used as guidance. She stated furthermore that in many countries, it was the sole responsibility of the State to ensure that the rights of children were respected and suggested the insertion of an acknowledgment that indigenous communities could also play a role in ensuring that the rights of indigenous children were respected. With regard to article 23, she suggested that attention be given to article 1 of the Declaration on the Right to Development which described the content of the right to development and acknowledged that it could be exercised both individually and collectively. However, she noted that article 2 of the Declaration stated that the human person was central to the right to development and should be the active participant and beneficiary of the right.
200. The observer for the Comisión Internacional de Derechos de Pueblos Indigenas de Sudamérica expressed his support for the draft as adopted by the Sub-Commission and said that articles 19 and 20 were very important as a tool to avoid escalation of situations where indigenous peoples were subjected to decisions in which they had not participated.
201. The observer for the Lummi Indian Business Council called upon the working group not to change the articles under consideration in light of his concerns over the political and social situation of indigenous peoples. Indigenous peoples had the right to participate as collectivities and their participation in existing procedures was hampered by the overall economic situation.
202. The observer for Sweden stated that two elements should be reflected in articles 19 and 20. The first was that indigenous people had the sa