Venne, Sharon H --- "Statement to the United Nations Working Group on Indigenous Peoples" [2004] IndigLawB 46; (2004) 6(4) Indigenous Law Bulletin 18

Statement to the United Nations Working Group on Indigenous Peoples

by Sharon H Venne for Akaitcho Dene

Introduction

The Draft United Nations Declaration on the Rights of Indigenous Peoples (‘the Declaration’) is an aspirational, non-binding international document which was drafted by the Working Group on Indigenous Peoples (‘WGIP’) in consultation with Indigenous peoples from all over the world. It is a comprehensive and authoritative statement of Indigenous rights and their implementation, intended to be used by Indigenous peoples and States both domestically and within the international community.

Unfortunately the Declaration has had a long and fraught history and all hopes of it being finally approved this year by the General Assembly for the end of International Decade of the World’s Indigenous People appear quashed. In 1993, the WGIP completed the Declaration and it was subsequently passed by the Sub-Commission on the Promotion and Protection of Human Rights in 1994. However, before it can reach the final stage in the General Assembly, the Declaration must be reviewed and approved by the Commission on Human Rights, a UN body comprised of State members. The Commission established an open-ended inter-sessional working group for this task.

Since then, the Declaration has remained with this working group as States and Indigenous organisations have battled to find compromises over the language of the document. One of the most significant issues has concerned article 3, reflecting the language of article 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, stating that Indigenous peoples have the right to self-determination. The Howard Government are among the key States opposing the wording of article 3. They argue that the term ‘self-determination’ could create rights for a separate Indigenous state and have proposed it be replaced by the term ‘self-management’. Understandably, Indigenous organisations have rejected this and other propositions.

The following statement concerning the Declaration and its progress was made at the WGIP meeting in July 2004.

Samantha Newman, Editor

Provisional Agenda item 6(e): Declaration on the Rights of Indigenous Peoples

We have reviewed the report of Mr Chavez regarding the work of the intersessional working group on the Declaration and would like to make some comments.

After nine years of stalling, the state governments are showing their true colours. It is clear that state governments do not and will not recognise that Indigenous Peoples are Peoples like all others in the world. The Covenants of the United Nations read: All Peoples have a right to self-determination. It does not read: All Peoples except Indigenous Peoples have a right to self-determination.

What we read in the proposals contained in the Annex to the report are a destruction of the work of the expert members of the Working Group who worked cooperatively with Indigenous Peoples to arrive at a Declaration. It is well remembered that these same states that are putting forward these recommendations tried to float those recommendations during the discussions in the Working Group. In the Working Group, they failed convince human rights experts and legal scholars on international legal norms that their proposals held any legitimacy. Now, these same states are floating these half-baked and ill-conceived notions of law to the intersessional working group.

Let us take one example from the recent report: The merging of clauses 25, 26, 27, 28 and 29 into something less than the legal requirements of international law and in some cases domestic law. The one unifying characteristic of Indigenous Peoples is our relationship with our lands. Our spiritual, mental, physical and cultural well-being comes from our lands. To separate Indigenous Peoples from the lands is to bring death. Mr Chairman – in your twenty years of sitting on the Working Group – congratulations, by the way – you have heard countless stories about Indigenous Peoples and the loss of their lands and the pain that inflicts on them as a Peoples. These clauses on the land rights were accepted by the experts at two levels within the United Nations, however, state governments believe that they are above the law and have chosen to disregard legal norms and push for a much lower standard. Mr Chairman, is not the United Nations to help elevate and protect the rights of all Peoples?

In the state of Canada, instructions to their negotiators is clear: the underlying title of the lands vests in the crown. This is a non-negotiable item from Canada’s point of view. This position is a violation of their own laws stating that Treaties need to be made with Indigenous Peoples prior to moving into their territories and recently confirmed by decisions of various courts. Canada chooses to disregard legal decision when these decisions go against the state. These proposed amendments to the Declaration are a violation of international legal norms set out by the International Court of Justice. Yet, this same country wants everyone to live by the rule of law. In these proposals, the Indigenous Peoples would be taken into consideration when the coloniser state makes laws and policies. What happened to the treaties? What happened to fully informed consent that is a right under Treaty? How did Indigenous Peoples get downgraded in their own lands to being taken into consideration like some interest group?

While negotiations are taking place, the state of Canada and others like New Zealand, Australia and United States of America are busy alienating Indigenous lands into private title. These tactics are designed to frustrate Indigenous Peoples from identification of their lands and resources that are the subject of the negotiations. This policy makes a mockery of the compensation and providing equivalent land. Ask the Western Shoshone about the compensation for their lands. Ask the Maori about their foreshore. This is more coloniser double talk that the United Nations should discourage rather than encourage.

It seems clear after all these years that state governments have no intention of accepting the Declaration as accepted by the Working Group and the Sub-commission. Indigenous Peoples have to make a decision. Are they going to continue to be involved and give their consent to the destruction of the Declaration? Or are Indigenous Peoples going to stand up for themselves and tell state governments that if they want to gut the Declaration then it will become the Coloniser State Government Declaration on the Rights of Indigenous People. Things will be very clear. The Coloniser State Declaration will be another tool of colonisation against Indigenous Peoples. Those Indigenous People who continue to participate in the farce are putting in jeopardy their future generations. It is better to walk away and fight another day than to give up everything for a watered down and ineffective declaration. It is critical to remember that Declarations are not legally binding on anyone. So why are states fighting so hard? Does it not appear obvious? Indigenous Peoples are not real human beings to have our rights protected by the United Nations body. Indigenous Peoples are to be used and abused and when finished with – discarded on the trash heap of history.

Thank-you

COMMISSION ON HUMAN RIGHTS

Sub-Commission on the Promotion and

Protection of Human Rights

Working Group on Indigenous Peoples

Twenty-second session

19-23 July 2004