Distr.
GENERAL

E/CN.4/Sub.2/1993/29
23 August 1999


Original: ENGLISH

COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of
Discrimination and Protection
of Minorities
Forty-fifth session
Agenda item 14


DISCRIMINATION AGAINST INDIGENOUS PEOPLES

Report of the Working Group on Indigenous Populations
on its eleventh session

Chairperson-Rapporteur: Ms. Erica-Irene A. Daes


CONTENTS

Paragraphs

Introduction 1 - 16

I. GENERAL DEBATE 17 - 36

II. EVOLUTION OF STANDARDS CONCERNING THE RIGHTS OF INDIGENOUS PEOPLES 37 - 75
A. General comments 39 - 48
B. Comments on specific provisions of the draft declaration 49 - 75

III. REVIEW OF DEVELOPMENTS PERTAINING TO THE PROMOTION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF INDIGENOUS POPULATIONS 76 - 145
A. Right of self-determination and political participation 79 - 89
B. Right to life, to exist in peace and to protection against genocide 90 - 96
C. Protection in armed conflict 97 - 100
D. Right to practise cultural traditions, religion and language 101 - 105
E. Right to education and to establish own media 106 - 111
F. Right to maintain their political, economic and social systems and
to develop their own strategies for development 112 - 122
G. Right to lands and territories 123 - 130
H. Right to protection of the environment 131 - 136
I. Cultural and intellectual property 137 - 139
J. Right to natural resources 140 - 143
K. Right to the observance of treaties and other legal agreements 144 - 145

IV. STUDY OF TREATIES, AGREEMENTS AND OTHER CONSTRUCTIVE ARRANGEMENTS BETWEEN STATES AND INDIGENOUS PEOPLES 146 - 157

V. STUDY ON THE CULTURAL AND INTELLECTUAL PROPERTY OF INDIGENOUS PEOPLES 158 - 176

VI. INTERNATIONAL YEAR OF THE WORLD'S INDIGENOUS PEOPLE 177 - 183

VII. WORLD CONFERENCE ON HUMAN RIGHTS 184 - 186

VIII. FUTURE ROLE OF THE WORKING GROUP 187 - 195

IX. OTHER MATTERS 196 - 208

X. CONCLUSIONS AND RECOMMENDATIONS 209 - 237
A. Standard-setting activities 209 - 210
B. Review of developments 211 - 214
C. Seminars and meetings 215 - 222
D. Studies and reports 223 - 226
E. International Year of the World's Indigenous Peoples 227 - 228
F. Other matters 229 - 237
Annexes

I. Draft declaration on the rights of indigenous peoples, as agreed upon by members of the Working Group on Indigenous Populations at its eleventh session

II. Amendments to the report submitted by members of the Working Group

Note. The Declaration of the World Uranium Hearing, Salzburg, September 1992, is contained in an addendum to the present report.


Introduction

Mandate

1. The creation of the Working Group on Indigenous Populations was proposed by the Sub-Commission on Prevention of Discrimination and Protection of Minorities in its resolution 2 (XXXIV) of 8 September 1981, endorsed by the Commission on Human Rights in its resolution 1982/19 of 10 March 1982, and authorized by the Economic and Social Council in its resolution 1982/34 of 7 May 1982. In that resolution the Council authorized the Sub-Commission to establish annually a working group to meet in order to:

(a) Review developments pertaining to the promotion and protection of human rights and fundamental freedoms of indigenous peoples, including information requested by the Secretary-General annually from Governments, specialized agencies, regional intergovernmental organizations and non-governmental organizations in consultative status, particularly those of indigenous peoples, to analyse such materials, and to submit its conclusions to the Sub-Commission, bearing in mind the final report of the Special Rapporteur of the Sub-Commission, Mr. José R. Martínez Cobo, entitled "Study of the problem of discrimination against indigenous populations" (E/CN.4/Sub.2/1986/7 and Add.1-4);

(b) Give special attention to the evolution of standards concerning the rights of indigenous peoples, taking account of both the similarities and the differences in the situations and aspirations of indigenous peoples throughout the world.

2. In addition to the review of developments and the evolution of international standards, which are separate items on the Working Group's agenda, the Group has over the years considered a number of other issues relating to indigenous rights. The study by the Special Rapporteur, Ms. Erika-Irene Daes, requested by the Sub-Commission in its resolution 1992/35, on the protection of the cultural and intellectual property of indigenous peoples (E/CN.4/Sub.2/1993/28) was available to the Working Group. It was considered under item 7.

Participation in the session

3. In its decision 1992/111 of 27 August, the Sub-Commission decided on the following composition of the Working Group at its eleventh session: Mr. Miguel Alfonso Martínez, Ms. Judith Tsefi Attah, Mr. Volodymyr Boutkevitch, Ms. Erica-Irene A. Daes and Mr. Ribot Hatano.

4. The session was attended by Mr. Alfonso Martínez, Ms. Attah, Mr. Boutkevitch, Ms. Daes and Mr. Hatano.

5. The following States Members of the United Nations were represented by observers: Argentina, Australia, Bangladesh, Bhutan, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cyprus, Denmark, Ecuador, El Salvador, Finland, Germany, Greece, Guatemala, Honduras, India, Indonesia, Japan, Mexico, Myanmar, New Zealand, Nicaragua, Norway, Panama, Peru, Philippines, Russian Federation, Sweden, United Kingdom of Great Britain and Northern Ireland, United States of America.

6. The following non-member States were represented by observers: Holy See and Switzerland.

7. The following United Nations departments and specialized agencies, and other organizations were also represented by observers: Department of Public Information, International Labour Organisation, United Nations Educational, Scientific and Cultural Organization, Nordic Council of Ministers, Aboriginal and Torres Strait Islander Commission of Australia.

8. The following non-governmental organizations in consultative status with the Economic and Social Council were also represented by observers:

(a) Organizations of indigenous peoples

Grand Council of the Crees of Alberta (Quebec), Indian Council of South America, Indian Law Resource Center, Indigenous World Association, International Indian Treaty Council, International Organization of Indigenous Resource Development, National Aboriginal and Islander Legal Service Secretariat, Nordic Sami Council and World Council of Indigenous Peoples.

(b) Other organizations

Category II

African Association of Education for Development, Afro-Asian People's Solidarity Organization, Amnesty International, Anti-Slavery International, Baha'i International Community, Commission of the Churches on International Affairs of the World Council of Churches, Defence for Children International, Four Directions Council, Friends World Committee for Consultation, International Association of Educators for World Peace, International Federation Terre des Hommes, International Fellowship of Reconciliation, International League for the Rights and Liberation of Peoples, International Service for Human Rights, International Work Group on Indigenous Affairs and Women's International League for Peace and Freedom.

Roster

International Federation for the Protection of the Rights of Ethnic Religious, Linguistic and Other Minorities, Minority Rights Group, Procedural Aspects of International Law Institute, Survival International and Third World Movement against the Exploitation of Women.

9. The following indigenous peoples' organizations and nations, as well as other organizations and groups, were represented at the session and provided information to the Working Group with its consent:

Aboriginal Law Center, Aboriginal and Torres Strait Islander Commission, Ainu Association of Hokkaido, Alaska Inuit, Alliance of Taiwan Aborigines, American Indian Movement of Colorado, Anishinabo First Nations, Apache Survival Coalition, Asian Indigenous Peoples Pact, Asociación de Comunidades del Pueblo Guaraní, Asociación Indígena de la República Argentina, Asociación Interétnica de Desarrollo de la Selva Peruana, Asociación de los Estudiantes Indígenas de Madre de Dios, Association of Koriak People, Big Trout Lake First Nation, Central Land Council, Centro Mocovi Ialek Lav'a, Centro Union Achiri - Mitka, Circle of Indigenous Elders, Chamorro - Organization of People for Indigenous Rights (Guam), Chirapaq (Peru), Chittagong Hill Tracts Hill Peoples Council, Chukchi People - L'Auravetl'an Foundation, Inc., Comisão por la Criacão do Parque Yanomani, Comisión Jurídica de los Pueblos de Integración Tawantinsuyana, Comité Exterior Mapuche, Comité Intertribal Memoria e Ciencia Indígena, Comité Organizador Indígena Kaqchique, Confederacy of Treaty of Six First Nations, Confederación de Pueblos Autóctonos de Honduras, Congrès populaire du peuple kanak - Nouvelle Calédonie, Conseil des Atikameku et des Montagnais, Consejo de Todas las Tierras, Consejos de la Gran Confederación Maya, Conselho Indigena Roraima, Consultorio Jurídico Kunas, Cook Inlet Tribal Council, Coordinadora Nacional de los Pueblos Indígenas de Panamá, Cordillera Peoples Alliance, Dalit Youth Movement (India), Dalit Solidarity Programme (India), Dene Nation Ecuarunari (Ecuador), Elders Circle of the Crees, Embera - Orewa (Organización Regional Indígena Embera), Even People, Federación de Centros Shuar Achuar, Federación Indígena y Campesina de Imbabura (Ecuador), Federación Nativa de Peru, Federación Provincial Indígena Aymara, Federation of Saskatchewan Nations, Finno-Ugrik Peoples Consultative Committee, Foundation Papua People, Frente Independiente de Pueblos Indios (Mexico), Front national pour la liberation kanak socialist (FLNKS), Haudenosaunee, Hmong People, Homeland Mission 1950 for South Moluccas, Hui' Na Auao, Iina Torres Strait Islanders Corporation, Indian Council of Indigenous and Tribal Peoples, Indian Movement Tupay Katari, Jana Samhati Samiti, Ka Lahui Hawaii, Kamp - National Federation of Indigenous Peoples Organizations in the Philippines, Karen National Union, Karen Youth and Women Organization, Kimberley Land Council, Lakota Nation, Lil'Wat Nation, Lubicon Cree, Lumad Mindanao Peoples Federation (Philippines), Maa Development Association (Kenya), Maori Legal Service, Maori Women's Welfare League, Mapuche People, Mataatua Confederation of Tribes, Mikmaq Grand Council, Miskito Yatama, Mohawk Nation, Muskogee Indian Nation, Na Koa O Pu'u Kohola, Nation Huronne - Wendate - Quebec, National Coalition of Aboriginal Organizations, National Committee to Defend Black Rights Aboriginal Corporation, National Maori Congress, National Socialist Council of Nagaland, National Union of Swedish Saami People, Native American Sioux/Seneca, Native Council of Nova Scotia, Native Hawaiian Advisory Council, New South Wales Aboriginal Land Council, Ngai Tahu Iwi, Ngati Te Ata, Nuba Mountains Solidarity Abroad, Onondoga Nation, Opetchesaht - Dene Nation, Oraon - (Indian Tribal Organization), Organización de las Mujeres del Trópico de Cochabamba, Otautahi Culture Group, Pacific Asia Council of Indigenous Peoples, Parlamento Indígena (Panama), Parlamento Indígena de Américas, Rehoboth Baster Community of the Republic of Namibia, Second World Indigenous Youth Conference, Sengwer Cherangany Cultural Group (Kenya), Servicios del Pueblo Mixo A.C., Sitksan and Wet'Sowet'en Nations (Canada), Small Peoples of North Siberia, Southern Sudan Group, Survie Touaregue Temoust, Sycuan Band of Mission Indians, Te Kotahitanqa o Tai Tokerare, Te Runanga o Whaingaroa, Teton Sioux Nation Treaty Council, Tuscarora Nation - Haudenosaunee, Unrepresented Nations and Peoples Organization, West Papua People Front, 1993 World Indigenous People Conference: Education.

10. The following organizations and groups were represented:

Action for Solidarity, Equity, Environment and Development, Alaska Native Human Resource Development Program, Alliance for the Rights of Indigenous Peoples, Anthropological Association of the Philippines, Asociación Cultural Sejekto de Costa Rica, Association de soutien aux nations amerindiennes, Associazione Ricreativa Culturale Italia, Atl Tlachinolli, Big Mountain Aktionsgruppe, Bureau for Indigenous and Minorities, Center for World Indigenous Studies, Centre d'information et de documentation pour les peuples indigènes et commission transnationale, Centro Cultural Wiphala Aymara de Bolivia, Centro Documentazione Etnie, Comité belge - Amérique indienne, Comité de soutien avec les Tucanos, Cultural Survival (Canada), Cultural Survival (United Kingdom), Democratic Progressive Party - Indigenous Affairs Committee, Dutch Center for Indigenous Peoples, Earth First, Educational Society of Nagaland, European Alliance with Indigenous Peoples, Federal Congress of Development Action Groups in Guam, Federation of Aboriginal Education Consultative Groups (Australia), Fonds mondial pour la sauvegarde des peuples autochtones, Foundation to Promote Indigenous Bilingual Education - BITO (in the Americas), Fourth World Center, Fourth World Center for the Study of Indigenous Law and Politics, Friends of People Close to Nature, Fundación Yanantin, Health for Minorities, Helsinki Committee - Kosovo, Global Coalition for Bio-Cultural Diversity, Incomindios, Indigenous Committee of the Presbyterian Church in Taiwan, International Medical Forum for Human Rights Health and Development, Institut de recherche et de documentation de l'île de Quisoueya, Institut pour l'Amérique latine (Austria), International Movement against Discrimination and Racism, Foundation Pavo, Kamchatua Film Company, Konaseema Educational Society, Kwia Flemish Support Group for Indigenous Peoples, Lelio Basso International Foundation for the Rights and Liberation of Peoples, Liga Internacional de Mujeres pro Paz y Libertad, Ligue des droits de l'homme (Section pérouge), MacArthur Foundation, Médecins sans frontières, Moral Re-Armament, Movimiento Acción Resistencia, Movimiento Indio por la Identitad National, New Zealand Human Rights Commission, NGO Committee on the International Indigenous Year, One World Now, Peekaboo, Performing and Fine Artists for World Peace, Rainforest Foundation, Saskatchewan Indian Federated College, Society for Threatened Peoples, Swissaid, The Galilee Society, The Montagnard Foundation, The Nature Conservancy, The South & Mesoamerican Indian Information Center, Traditions pour demain, Tremembe - Brasil, Tribal Act, Tribal Ecology Center, United Church of Christ (Philippines), United Nations Association (UK), World Uranium Hearing.

11. In addition to the above-mentioned participants, 108 individual scholars, experts on human rights and human rights activists and observers attended the meetings. Among them was the United Nations Goodwill Ambassador and Nobel Prize Laureat, Mrs. Rigoberta Menchu Tum. More than 600 people attended the eleventh session of the Working Group.

Election of officers

12. At its 1st meeting, on 19 July 1993, at the proposal of Mr. Alfonso Martínez, supported by Mr. Hatano and Mr. Boutkevitch, the Working Group re-elected by acclamation Ms. Erica-Irene Daes as Chairperson-Rapporteur for the tenth time in succession.

Organization of work

13. At its 1st meeting, the Working Group considered and adopted the provisional agenda, contained in document E/CN.4/Sub.2/AC.4/1993/L.1.

14. The Working Group held 16 public meetings, from 19 to 30 July 1993. The Working Group decided to devote the 2nd to 10th meetings to item 4 on standard-setting activities, five meetings to item 5 on review of developments, one meeting to items 6 and 7 related to the studies by the Special Rapporteur on the study of treaties, agreements and other constructive arrangements and on the study on the cultural and intellectual property of indigenous peoples, and one meeting on the remaining items of the agenda related to the International Year of the World's Indigenous People, the World Conference on Human Rights, the future role of the Working Group and other matters. Three extended meetings were held during the second week of the Working Group. In accordance with established practice, the Working Group continued to meet in private during and after the subsequent session of the Sub-Commission for the purpose of finalizing its report and adopting the recommendations contained therein.

Documentation

15. The following documents were made available to the Working Group:

Adoption of the report

16. The report of the Working Group was adopted on 16 August 1993.


I. GENERAL DEBATE

17. A representative of the Assistant Secretary-General for Human Rights and Coordinator of the International Year of the World's Indigenous People delivered the opening statement. He drew attention to the provisional agenda of the eleventh session of the Working Group on Indigenous Populations which contained several new items. He referred in particular to the study of the Special Rapporteur on the cultural and intellectual property of indigenous peoples, to the International Year of the World's Indigenous People, to the World Conference on Human Rights, as well as to the future role of the Working Group of Indigenous Populations itself. He recalled that the Working Group had been requested by the Commission on Human Rights, in resolution 1993/31, and by the World Conference on Human Rights, in its final document, to complete its drafting of the declaration on the rights of indigenous peoples. He also recalled that the Working Group had before it the progress report of the Special Rapporteur on treaties, agreements and other constructive arrangements between States and indigenous populations and should review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations. In all, the task before the Working Group was a formidable one.

18. The representative of the Assistant Secretary-General reported on the results of two recent meetings that were of importance to indigenous peoples. Firstly, the recommendations made to the General Assembly in the Programme of Action contained in the Final Document of the World Conference on Human Rights requested the Commission on Human Rights to consider how the Working Group's mandate could be renewed and updated, that an international decade of the world's indigenous people be proclaimed, to begin in January 1994, and that, in the framework of such a decade, a permanent forum for indigenous people should be established. Secondly, the reconvened technical meeting on the International Year which was held from 14 to 16 July at Geneva had adopted a series of recommendations aiming at practical action to be taken during the remainder of the year and calling for adequate resources and planning with the full participation of indigenous peoples.

19. The representative expressed the view that, while it was clear that the rights of indigenous peoples were now formally and fully part of the United Nations agenda, this did not mean that the concerns of indigenous peoples were being adequately met by the programmes of the United Nations system. More could be done to ensure that the existing mechanisms and programmes of the Centre for Human Rights - especially the opportunities which existed through the treaty bodies and the Voluntary Fund for Technical Cooperation - could respond better to the needs of indigenous peoples. The eventual declaration on the rights of indigenous peoples would serve as a guiding document not only for States but also for those United Nations organizations concerned with operational activities and technical assistance. He paid tribute to the Working Group: to the dedication of its five members, to the skill, energy and commitment of its Chairperson-Rapporteur of nearly 10 years, and to the many hundreds of representatives of indigenous nations, peoples and communities who had shared their experiences over the years, making the Working Group the motor for change in the United Nations system, where ideas were born and new programmes generated.

20. In her opening statement, the Chairperson-Rapporteur stressed the importance of the eleventh session of the Working Group on Indigenous Populations. The session fell at the mid-point of the International Year of the World's Indigenous People and therefore provided the participants with an opportunity to take stock of the progress made thus far, as well as to consider ways to ensure that the Year would be a success. The Year should lead up to the adoption of a comprehensive United Nations agenda for indigenous people, the outline of which should be discussed during this session of the Working Group so as to enable it to be considered by the Secretary-General in his report on the results of the Year. Secondly, the Chairperson-Rapporteur noted that during the session the drafting of the United Nations declaration on the rights of indigenous peoples, begun in 1985, should be completed. During the period 1985-1993, the indigenous peoples of the world community, governmental organizations, specialized agencies and other organizations had expressed their views and provided information on which the declaration was based. In particular, indigenous peoples and representatives had actively participated in the drafting process.

21. The past 12 months had been an exciting and challenging time for indigenous peoples, since international interest and concern for issues relating to indigenous peoples had grown considerably. She stressed, however, the continuing critical lack of resources for the taking of concrete action by the United Nations. Nowhere had that been more apparent than in the management of the International Year of the World's Indigenous People which, despite the best intentions of the sponsors of the initiative, had thus far attracted the least amount of financial support of any major United Nations international year or celebration. She also regretted that the stated interest of many international agencies in developing programmes to support indigenous people's self-development, especially in the environmental field, had not yet been translated into reality. This was very disappointing, in view of the expectations raised by the United Nations for more than a decade as well as in view of the shift of the challenge for the Working Group: in the early days its work was concerned with the survival and humane treatment of indigenous peoples but was now giving indigenous peoples the opportunity to make their own contribution to the national development and progress of the countries in which they live. These countries now looked to the United Nations for models and concrete support in building a new social compact with indigenous peoples - one that could help strengthen national unity as well as cultural integrity, human rights, development and democracy.

22. The decision of the General Assembly to include a special item on the agenda of the World Conference on Human Rights commemorating the International Year of the World's Indigenous People was gratifying. The Vienna Declaration adopted by the Conference recognized "the inherent dignity" of indigenous people, as well as the "value and diversity of their distinct identities, cultures and social organization", and the importance of respecting the rights of indigenous peoples for ensuring national stability and development. More concretely, the Vienna Declaration supported providing United Nations technical assistance to indigenous peoples in the field of human rights, through the programme of advisory services. It also endorsed indigenous peoples' own calls for extending the International Year into a decade, called on the Working Group to complete the drafting of the declaration on indigenous rights and recommended further consideration of the creation of a permanent forum for indigenous peoples within the United Nations system. The latter recommendation was the first official acknowledgement by any United Nations body of indigenous peoples' aspirations for a formal place in United Nations decision-making. In that connection, the Chairperson-Rapporteur appealed to the Assistant Secretary-General for Human Rights to establish as soon as possible the already envisaged special unit for indigenous peoples within the Centre for Human Rights. She also requested the Secretary-General to elaborate a substantive mandate for and define the role of the Goodwill Ambassador, Mrs. Rigoberta Menchú Tum, as soon as possible, with her advice and express consent, authorizing her, inter alia, to exchange views with Governments on the specific problems which must exist in the countries she visited during her United Nations missions and to discuss, among other things, possible projects from which the indigenous peoples and the Governments concerned would both benefit.

23. The Chairperson-Rapporteur informed the meeting of the results of two recent meetings convened as a follow-up to last year's United Nations Conference on Environment and Development (UNCED). The Preparatory Committee for the International Conference on Population and Development agreed at its first substantive session to include some specific sections on indigenous peoples in its outline for the final act of the conference, to be held in Cairo in September 1994. Also, the United Nations Commission on Sustainable Development had endorsed, inter alia, the recommendation of UNCED that the United Nations should organize formal annual consultations with indigenous peoples to ensure that the United Nations operational activities took account of their rights and perspectives at a global level. The Chairperson- Rapporteur hoped that the relevant United Nations programmes and specialized agencies would take the opportunity provided by the present session of the Working Group to discuss with indigenous representatives a plan for the implementation of that extremely important decision. She further appealed to all the indigenous peoples represented at the meeting to make every effort to attend all of the United Nations meetings which concerned them and to participate actively and conscientiously in all of the work, so as not to lose the important new momentum.

24. Mr. Alfonso Martínez, explaining that he had been unable to attend a meeting with representatives of indigenous peoples in Alaska because of an unreasonable delay in processing his visa application at the United States consulate, as requested by the United Nations representative in Havana, urged Governments to facilitate the work of the Special Rapporteur in the fulfilment of his mandate.

25. The observer for Australia expressed his gratitude for Ms. Daes' visit to Australia in June 1993 and for her efforts to engender universal awareness of the plight of indigenous peoples. The current session of the Working Group was important not only because of the International Year of the World's Indigenous People but also because Australia was scrutinizing its obligations toward its Aboriginal and Torres Strait Islander peoples in the light of the High Court of Australia's decision on Native Title in the case of Mabo v. Queensland. He expressed the hope that the Working Group could reach a consensus on a balanced text for the declaration, acceptable to indigenous peoples, Governments and the international community. The report of the Working Group would be more useful if the observer Governments which made comments were identified and if the section on review of developments was structured along the lines of the draft declaration. The Commission on Human Rights should establish a working group to consider the draft declaration, with the participation of indigenous people.

26. The observer for the Dene Nation requested a postponement of the consideration of agenda item 4 because of the differences in the texts of the draft declaration between documents E/CN.4/Sub.2/1992/23 and E/CN.4/Sub.2/1993/26 on which the debate would be based.

27. The Chairperson-Rapporteur said that document E/CN.4/Sub.2/1993/26 was based on the discussion of last year and included views and suggestions of indigenous peoples and Governments. Apart from article 3 on self-determination no radical changes had been introduced.

28. The Chairperson-Rapporteur, replying to a question from the observer for Colombia, said that the documents of the Technical Meeting on the International Year of the World's Indigenous People were in the process of being edited and translated and would hopefully be available to the meeting.

29. At the 2nd meeting, the Chairperson-Rapporteur invited the participants to observe a minute of silence in commemoration of all indigenous people who had died in the past centuries in the struggle to defend their fundamental rights.

30. The United Nations Goodwill Ambassador, Ms. Rigoberta Menchu Tum, participated in the 4th to 14th meetings. She expressed her appreciation to the Working Group and its Chairperson-Rapporteur. Under agenda item 4, she stressed the importance of the draft declaration for the struggle of indigenous peoples and, under agenda item 5, summarized the most pressing concerns of indigenous peoples in relation to recent developments.

31. At the 4th meeting, the Deputy-Minister of the State Committee of the Russian Federation on the North Affairs addressed the Working Group. The Working Group had become a focal point for indigenous affairs. She endorsed the recommendations made by the World Conference on Human Rights to declare a decade of the world's indigenous people and to create a permanent forum to address indigenous people's issues.

32. The Working Group was addressed by the Under-Secretary-General for Policy Coordination and Sustainable Development who spoke about the role and mandate of this unit in the follow-up of UNCED, in particular as regards the participation of indigenous peoples in the process of sustainable development.

33. The Premier of the Home Rule Government of Greenland noted that developments over the past 11 years had shown that the recognition of indigenous peoples and their right to self-determination were not destructive to State unity. He commended the role the United Nations had played and continued to play in promoting the cause of indigenous peoples, by recognizing that the rights of indigenous peoples must be treated as distinct from the minorities issue and by establishing the Working Group, thereby giving indigenous peoples a forum for standard-setting activities as well as a place to raise matters of concern to them.

34. In her concluding statement the Chairperson-Rapporteur said that the eleventh session of the Working Group had been one of the most successful sessions held so far. The second and final reading of the draft declaration had been successfully completed, two studies by members of the Working Group had been considered and a debate on a future role for indigenous peoples in the United Nations system had begun. Speaking of the progress made on standard setting she recalled that the Sub-Commission, the General Assembly at its forty-seventh session and the World Conference had called on the Working Group to complete the drafting of the declaration. All amendments to the draft declaration made by participants during the second reading would be taken into consideration by the Working Group before it submitted its report, containing a revised draft of the declaration, to the Sub-Commission. Indigenous representatives would have an opportunity to address the Sub-Commission and the Commission on Human Rights and make their views known during the debate on the draft declaration.

35. The Chairperson-Rapporteur also addressed the future role of the Working Group, emphasizing that a number of highly interesting suggestions had been made by indigenous peoples and observer Governments. The World Conference on Human Rights had recommended to the General Assembly that it consider updating the mandate of the Working Group and establishing a permanent body for indigenous peoples within the United Nations. In that connection, she referred to her note on the future role of the Working Group (E/CN.4/Sub.2/AC.4/1993/8).

36. The Chairperson-Rapporteur emphasized that the eleventh session of the Working Group once again gathered a large number of participants, observer Governments, organizations of the United Nations system, indigenous, nations, organizations and communities and non-governmental organizations as well as individual experts and scholars, in total more than 600 persons. She mentioned that many indigenous representatives had received assistance from the Voluntary Fund to attend the Working Group. She expressed her gratitude to all the Governments which had contributed to the Voluntary Fund, and to the Chairman of the Board of Trustees of the Voluntary Fund. She also thanked the members of the Working Group and all participants for their work and the secretariat for its support. She further expressed her gratitude to the Indigenous Centre for Documentation, Research and Information and the International Service for Human Rights for the technical support and assistance they had provided to indigenous representatives.


II. EVOLUTION OF STANDARDS CONCERNING THE RIGHTS
OF INDIGENOUS PEOPLES

37. At the 2nd meeting, the Working Group considered agenda item 4. After the meeting the representatives of the indigenous peoples held two informal consultations the conclusions of which were reported to the Working Group by Mr. Moana Jackson of the Maori Legal Services at the 3rd meeting.

38. The Working Group started the second reading of the draft declaration at its 4th meeting. On the basis of the discussion of the draft declaration held during the previous meetings the Working Group elaborated a new draft which was presented by the Chairperson-Rapporteur at the 5th meeting on 21 July 1993. It was agreed to use the word "articles", not "paragraphs", in future in the draft declaration. The new draft, on which the further reading of the draft declaration was based, is contained in document E/CN.4/Sub.2/AC.4/1993/CRP.4.


A. General comments

39. At the 4th meeting, the United Nations Goodwill Ambassador, Ms. Rigoberta Menchú Tum, addressed the meeting. The draft declaration would have to be an instrument which facilitated the struggle of all indigenous peoples. Thus far, the drafting procedure had shown considerable progress but before the declaration could be enshrined within the framework of international instruments, gaps needed to be filled. It would be paramount to reach consensus on the issue of self-determination. Furthermore, the right to ownership of land by indigenous peoples could not become a peripheral issue. Unfettered enjoyment of those rights created the very essence of the cultures and societies of indigenous peoples and must be entrenched in the document. There were many promising developments. Thus far, the discussions had displayed the perseverance and unity of indigenous peoples as well as the good will of a number of States. It was essential that the draft not be viewed as a threat to Governments or a source of friction, but as a mechanism which would eliminate conflict in the future.

40. The observers for a number of Governments emphasized that the Working Group was called upon to finish the draft declaration at this session and expressed their hope that this aim could be achieved. Representatives of indigenous peoples also expressed their commitment to the drafting process but some of them stressed that the speedy finalization of the declaration could not be an end in itself; the declaration should reflect indigenous peoples' aspirations in the best possible way. A number of representatives of indigenous peoples also expressed the view that the draft declaration should be short and clear so as to provide a document which was accessible and understandable to all indigenous peoples, not only to those involved in the current process.

41. The observers for several Governments stressed that the Working Group was called upon to produce a document that could be accepted by the other organs of the United Nations. The observer for Chile expressed the readiness of his Government to participate in the elaboration of a consensus document.

42. Another issue which was frequently addressed by governmental observers was the need to make the draft declaration as flexible as possible. The observer for Japan pointed out that a flexible text was needed so as to take into account the different historical and social contexts in which indigenous peoples lived, as well as the different administrative systems of the countries concerned. The observer for Norway stressed that such flexibility must be followed by strong protection of the rights of indigenous peoples.

43. The observers for some Governments pointed out that the draft declaration in its present form did not contain a definition of "indigenous peoples". The observer for Japan expressed the concern that this might give rise to subjective interpretations as to which groups were entitled to the rights contained in the declaration.

44. The Chairperson-Rapporteur replied that, for the purposes of the draft declaration, the working definition of "indigenous peoples" contained in the study by Maretinez Cobo (E/CN.4/Sub.2/1983/21/Add.8, paras. 362-382) should be applied.

45. The observer for Canada recognized that working papers E/CN.4/Sub.2/26 and E/CN.4/Sub.2/1993/CRP.4 contained some of the views of his Government. He added that all rights under the declaration should be available, without discrimination, to both male and female persons and proposed that a provision to this effect be included.

46. The observer for a non-governmental organization drew attention to the fact that the draft declaration in its present form did not contain any implementation mechanism. The observer for the International Indian Treaty Council suggested that the draft declaration should include a number of issues which were missing in the present text: the rights of indigenous workers should be included and reference made in this context to ILO Convention No. 169 of 1989; an article on genocide should be elaborated and the right of indigenous peoples to have access to health services should be included.

47. Several representatives of indigenous peoples commented on the need to use the term "peoples", in the plural, both in the draft declaration and in other documents because the singular form was perceived by indigenous peoples as discriminatory, denying them rights available to other peoples.

48. Following a request for clarification of the terms "cultural genocide" and "ethnocide", the Chairperson-Rapporteur explained that "cultural genocide" referred to the destruction of the physical aspects of a culture, while "ethnocide" referred to the elimination of an entire "ethnos" and people.


B. Comments on specific provisions of the draft declaration

49. During the discussion a number of questions proved to be of particular importance to the participants. A great number of indigenous representatives and of governmental observers expressed their views on the issue of "self-determination", on the implications of using or not using the term "indigenous peoples" and on the issue of "collective rights" and "land rights".

50. The majority of the governmental observers expressed reservations on the issue of self-determination. The observer for Canada emphasized that his country supported the principle that indigenous people qualified for the right of self-determination in international law on the same basis as non-indigenous people. In all other cases "self-determination" of indigenous people had to be granted within the framework of existing nation States. The notion of self-determination as used in the draft declaration implied the right of indigenous people to unilaterally determine their political, economic and social status within the existing State, while it was not clear how the concepts of self-determination, self-government and autonomy which were addressed in articles 3 and 29 of the draft interrelated and what the range of powers of indigenous governments would be and how they would relate to the jurisdiction of existing States.

51. The observer for Finland stated that his country was in favour of the use of the concept of self-determination in the draft declaration. The observer for Denmark stated that the exercise of the right of self-determination was a precondition for any full realization of human rights for indigenous peoples. His country supported the formulation in the draft declaration that indigenous peoples had the right to autonomy and self-government in matters relating to their internal and local affairs. The enjoyment of the right to autonomy and self-government constituted the minimum standard for the survival and the well-being of the world's indigenous peoples.

52. The observer for New Zealand stated that a distinction could be made between the right of self-determination as it currently existed in international law, a right which developed essentially in the post-Second World War era and which carried with it a right of secession, and a proposed modern interpretation of self-determination within the bounds of a nation State, covering a wide range of situations but relating essentially to the right of a people to participate in the political, economic and cultural affairs of a State on terms which meet their aspirations and which enable them to take control of their own lives. He suggested seeking language on self-determination which committed Governments to work with indigenous peoples in a process of empowerment within the State in which they lived.

53. The observer for Chile stated that the draft declaration should recognize the right of indigenous people to self-determination but that that concept had to be made subordinate to the concept of unity and territorial integrity of States. In the same context, the observer for Australia suggested that, in order to relieve the inherent tension between the concepts of self-determination and territorial integrity, language be included to ensure that nothing in the draft declaration would be construed as authorizing or encouraging any action which would be detrimental to the territorial integrity of States. Such an approach was already taken in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.

54. The observer for the Russian Federation said that when discussing the issue of self-determination it must be borne in mind that indigenous peoples lived in very different regions of the world and that they might require totally different aspects of self-government. She felt that paragraph 29 did not cover all aspects that fell under the notion of self-determination and self-government and suggested that the declaration should contain only the general principle.

55. The observer for Brazil pointed out that some of the concepts proposed in the draft might encounter difficulty in being accepted by many Governments, in particular those relating to self-determination as defined by existing international law, the extent of the rights of property over indigenous lands, demilitarization of indigenous lands, and the impossibility of removal of indigenous populations from their lands.

56. The opinion of the indigenous peoples was expressed by Mr. Moana Jackson who reported on the conclusions reached in the informal meeting held by the representatives of indigenous peoples. They were worried about attempts to limit the concept of self-determination to the conduct of internal affairs. He stated that the right of self-determination, contrary to what the observer for New Zealand had said, was not primarily a post-Second World War concept but had existed since time immemorial and was not dependent exclusively on international law for its understanding. Indigenous peoples claimed for themselves a right to a subjective definition of the right to self-determination. The informal meeting proposed to amend articles 3 and 29 of the draft declaration as contained in document E/CN.4/Sub.2/1993/26. The issue of self-determination should be dealt with in a new article 1 and be worded along the lines of the two International Covenants on Human Rights.

57. A number of representatives of indigenous peoples expressed the view that the right of self-determination was the pillar on which all the other provisions of the draft declaration rested and the concept on which its integrity depended. One argued that there seemed to be consensus that the right of self-determination should be considered a rule of jus cogens, implying that this right was of such a profound nature that no State could derogate from it. Many representatives of indigenous peoples emphasized that the declaration must express the right of self-determination without any limitations or qualifications.

58. In this context representatives of indigenous peoples voiced their concern that the right of self-determination as contained in articles 3 and 29 might give rise to restrictive interpretations. The observer for the National Aboriginal and Islander Legal Services pointed out that while all other peoples were granted the full right to self-determination as defined by the International Covenants, the declaration seemed to limit indigenous peoples' right to self-determination. The observer for the Nordic Sami Council proposed that the issue of self-determination, in accordance with its importance, should be dealt with in the first operative paragraph or article and that the exact wording of article 1 of the two International Covenants should be used. The observer for the Haudenosaunee Nation, delivering a joint statement on behalf of the indigenous representatives of Australia, made similar proposals.

59. The observer for the Aboriginal and Torres Strait Islander Commission mentioned the recent visit of the Chairperson-Rapporteur to Australia and recalled that during her visit she had suggested that a distinction be made between "external" self-determination, by which peoples liberated themselves from imposed alien rule, and "internal" self-determination, by which collective groups of indigenous peoples sought to preserve and develop their cultural and territorial identity within the political order of the State in which they lived. The observer stressed the fact that "self-determination", to Australia's indigenous peoples, meant to seek increasing autonomy in terms of self-management and self-government but was not understood as a mandate for secession. Therefore, a need to stress the territorial integrity of States in the draft declaration could not be perceived.

60. The observer for the American Indian Movement of Colorado expressed the view that the right of "self-determination" could not be limited to those peoples who had already established their States. He emphasized that accepting a concept of "self-determination" which encompassed not merely self-government but the right to freely choose a political status would not automatically lead to the dismemberment of States. Conflict and disruption were not caused by demands for the right to self-determination, as some Governments had suggested, but by the fact that peoples were forced to assimilate into States that did not respect their distinctive identities.

61. A number of scholars also expressed their views on the concept of self-determination. Prof. Maivan Lam stated that she shared the view of the majority of indigenous peoples present. She stressed that indigenous peoples had the same right as all other peoples to self-determination and that many international jurists today held the view that the right of self-determination had achieved the status of jus cogens and was therefore not subject to changes by States. Moreover, she drew attention to the fact that the International Court of Justice had in the Western Sahara case expressed the view that the right to self-determination belonged to peoples, not to States. Prof. Thornberry emphasized that the international law on self-determination was not static. Although a powerful case could be made that self-determination formed part of jus cogens, the precise form taken by self-determination was subject to historical change. He pointed out that the concept of self-determination as it was shaped by the Working Group was itself part of the change. Prof. Jim Anaya argued that the right of self-determination was a long-standing idea. He referred to two aspects of self-determination: one constitutive, the other ongoing. The first was linked to the rights of peoples to determine their political status, the second concerned the rights of groups and individuals to make meaningful choices in matters of concern to them on an ongoing basis. He added that secession was not usually desirable and could in many cases prove to be detrimental to the interests of indigenous peoples.

62. Another issue which was frequently addressed was the use of the term "indigenous peoples". Observers for Governments expressed their concern that the use of the term "peoples" would have implications under international law, because of its link with the right of self-determination. The observer for Canada proposed that the draft declaration should contain a provision specifying that the term "peoples" had no consequences for the right of self-determination under international law. If such a clarification were not made it would mean that there was a right to secede; even if secession were not chosen, it would still imply the right of indigenous peoples to enact laws concerning their political, economic, social and cultural status without regard to or application of the laws of the surrounding State.

63. The observer for Brazil noted that the use of the term "peoples" instead of "people" was not consistent with that in other United Nations documents, including chapter 26 of Agenda 21.

64. The observer for Sweden proposed adding an explanatory definition such as the one included in ILO Convention No. 169 of 1989, which provided that "the use of the term 'peoples' in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law." The observer for Norway stated that his delegation supported the proposal to use the term "indigenous peoples" in the plural, in the draft declaration so as to meet the indigenous peoples' own requests.

65. Mr. Jackson voiced the concern of indigenous representatives, expressed at the informal consultations, that they not be addressed as "indigenous peoples" in the declaration. That was to destroy their collective basis and to continue colonial domination. They should be referred to as "indigenous people" or "populations".

66. Many representatives of indigenous peoples stressed that the term "peoples" had primarily historical implications for them. The Chief of the Grand Council of the Crees, for example, pointed out that they had defined themselves as peoples since time immemorial. Others emphasized that only the use of the term "peoples" would reflect the notion of collectivity on which indigenous life was based. The term "indigenous people" or "populations" signified only a group of individuals and therefore denied them their collective identity.

67. The observer for the Indian Council of Indigenous and Tribal Peoples suggested that the language of the draft declaration should follow ILO Convention No. 169 and use the term "indigenous and tribal peoples" so as to include the Asian peoples who are usually referred to as tribal peoples.

68. A number of participants raised the question of "collective rights". The observer for the United States of America pointed out that the draft declaration referred in numerous instances to the collective rights of indigenous groups. She expressed concern about the fact that those references went far beyond the limited collective rights recognized in international law or the practice of States. The draft declaration did not define "indigenous peoples". Hence, there were no criteria for determining what groups of persons could assert the proposed new collective rights. She expressed concern that in some circumstances the articulation of group rights could lead to the submergence of the rights of individuals.

69. The observer for Sweden stated that the notion of collective human rights should be formulated carefully. The concept of human rights flowed from the idea of the inherent rights of each individual. This concept should not become weakened or ambiguous. Therefore, indigenous rights, even when exercised collectively, should be based on the non-discriminatory application of individual rights. He suggested an approach similar to the one adopted in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.

70. On the question of "land rights", the observer for Canada stated that the draft declaration drew no distinction between "lands" and "territories", nor was it clear whether they were intended to mean only those lands and territories where indigenous people had or could establish legal titles to all lands and territories which they claimed. The provision in article 24 that indigenous people "have the right to own, control and use their lands and territories", in combination with the statement in article 23 that lands and territories are those that have been "traditionally owned or otherwise occupied or used", gave those articles a far-reaching effect. Article 25, establishing a principle of restitution of land, is also problematic for Canada which had devised a system of negotiated settlements (comprehensive land claims agreements) with indigenous people. The observer reiterated the Canadian recommendation that a "reasonable limits" clause should be introduced in the declaration in order to enable more Governments to support it.

71. The observer for Sweden pointed out that, while the land rights of indigenous populations were generally discussed in terms of ownership and possession, he stressed the importance of "usufruct", a strongly protected legal right to use land, as an alternative concept. The Swedish Supreme Court had recognized the right of "usufruct" as a customary right of the Sami population in one large land area.

72. The observer for Finland stated that the article on land rights was quite far reaching even in comparison to article 14 of ILO Convention No. 169. The ILO Convention made a distinction between lands traditionally occupied by indigenous peoples and lands "not exclusively occupied by them". He recommended that a similar approach be taken in the draft declaration.

73. The observer for the Dene Nation emphasized that the declaration must include a clear right of indigenous peoples to own their lands and resources. Similarly, the observer for the Nordic Sami Council stressed that the draft declaration should clearly guarantee the ownership of traditional lands by indigenous peoples and recognize their hunting and fishing rights; other concepts, like mere "usufruct", as suggested by the Swedish delegate, were not able to meet the concerns of all indigenous peoples.

74. The observer for the International Labour Office suggested that reference be made in the preamble to ILO Convention No. 169 of 1989, while a number of indigenous representatives expressed doubts about the appropriateness of such a reference since that Convention, inter alia, narrowed the concept of self-determination and had been ratified by a very small number of States.

75. The Chairperson-Rapporteur read out the text of revised article 3 on self-determination, contained in document E/CN.4/Sub.2/AC.4/1993/CRP.4. It met with the approval of all representatives of indigenous peoples and other participants.

III.REVIEW OF DEVELOPMENTS PERTAINING TO THE PROMOTION
AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS OF INDIGENOUS POPULATIONS

76. Agenda item 5 was discussed at the 11th to the 15th meetings, from 27 to 30 July 1993. One hundred and twenty six speakers addressed the item. The Working Group decided to adapt a proposal by Australia to structure the report on agenda item 5 along the lines of the draft declaration. Therefore, the subheadings of this section reflect the main issues addressed in the draft declaration.

77. In her introduction to agenda item 5 the Chairperson-Rapporteur emphasized that the review of developments pertaining to the promotion and protection of human rights and fundamental freedoms of indigenous populations was a fundamental part of the mandate of the Working Group as set out in Economic and Social Council resolution 1982/34. The item was of great importance to indigenous peoples and at the same time it provided invaluable information to the members of the Working Group and to other participants.

78. Ms. Rigoberta Menchú Tum, addressed the Working Group under agenda item 5. She said that on the basis of the requests that she had received over the last year, she was of the impression that the following issues were of the greatest importance to indigenous peoples: land rights, the participation of indigenous peoples in decision-making procedures, the militarization of indigenous communities and forced displacement, as well as cultural repression. Moreover, she underlined the importance of indigenous participation in the United Nations system, especially in development programmes.


A. Right of self-determination and political participation

79. Indigenous participants reported on their struggle for self-government and increased participation in decision-making processes affecting their lives. Some acknowledged steps taken by Governments to give them greater autonomy while others described situations of repression or assimilationist policies. One representative mentioned, for example, that although indigenous peoples formed the majority of the country, their participation in public life was kept to a minimum. Numerous representatives referred to the importance which the articles on self-determination in the draft declaration would have in their further efforts for recognition of their political status.

80. An indigenous representative pointed out that although the Government in his country recently abandoned the notion of a "racially homogenous country", his people had not been recognized as indigenous yet but only as "minorities" and that the Government used the lack of a definition of "indigenous peoples" in international law as an excuse for its policy.

81. The observer for India explained that the application of the term "indigenous people" was not adequate for his country because its entire population had been living on its lands for several millennia. All these people were indigenous and any attempt to make a distinction between indigenous and non-indigenous would be artificial. He elaborated further on the efforts made to promote the rights and interests of the scheduled castes and tribes: a National Commission had been constituted to monitor all matters relating to the safeguards provided for those groups; moreover, poverty alleviation and development programmes had been designed to strengthen the economic and social status of those most vulnerable groups of society. The observer expressed grave concern at the appearance in the Working Group of persons who, in his opinion, were openly secessionist and xenophobic.

82. An indigenous representative drew attention to the fact that even in the International Year of the World's Indigenous People, the authorities of her country did not recognize the existence of "indigenous peoples". The Government referred to her people by using the expression "isolated groups", who were described as primitive and backward and their ideological and technical systems simple.

83. The observer for Norway reported on the activities of the Sami parliament which started its work in 1989 and could take initiatives in all matters that were of concern to the Sami people.

84. Following Finland and Norway, the Swedish Government had passed a law constituting a Sami parliament in December 1992. The primary task was to nurture a living Sami culture in Sweden. It would allow the Sami people to participate in public planning and to ensure that their needs were taken into consideration in the utilization of land and water resources. Legislation had also been passed to ensure that only members of Sami communities could engage in reindeer herding and to prohibit any use of the land which would interfere with this activity.

85. The observer for Finland presented a review of developments during the past year concerning the legal position of the Sami. An amendment to the Parliament Act stated that the parliament would hear representatives of the Sami before deciding on matters which closely affected them. An amendment to the Constitution concerning basic elements of the Sami administration was currently under preparation. The amendment aimed at delegating decision-making powers from the central administration to the local level.

86. The president of the Sami Council stated that although the current level of self-determination and self-government was limited, recent developments were promising: with the establishment of the Swedish Sami parliament all Nordic countries now had constitutional and legal arrangements for Sami self-government. As a next step, the Sami people would try to achieve membership in the Nordic Council.

87. The observer for Canada pointed out that in parallel with the land claim agreements that had been concluded over the last year, negotiations on self-government had been conducted. An example was the two Acts regarding the territory of Nunavut. These Acts provided for Nunavut to have its own public government with a commissioner, cabinet, legislative assembly, public service and territorial court. Residents of the area, Aboriginal or non-Aboriginal, would thus have greater control over decisions affecting their lives.

88. The observer for the United States noted that the Charter of the United Nations referred arguably to the principle of self-determination, not the "right".

89. The observer for an indigenous organization pointed out that since New Caledonia had been put back on the list of non-autonomous territories by the Special Committee of 24, France refused to communicate to the Secretary-General of the United Nations relevant information on the political, economic, social and cultural situation of his country, which was indispensable for the process of decolonization initiated in 1987. His delegation was opposed to the Matignon Agreement which postponed their opportunity to achieve independence and provided for a referendum in 1998 when Kanak voters would be a minority. The signing of the Matignon Agreement was not based on a free decision by the Kanak people and it did not open the door to self-determination.


B. Right to life, to exist in peace and to protection against genocide

90. An indigenous representative appealed for intervention in order to put an end to genocide in his country. He mentioned that his people were in danger of extinction and that the population had dwindled to less than 1 million because of war, and that 85 per cent of their villages had been destroyed. He claimed that his people were subject to "ethnic cleansing", that their language was forbidden and that their women were forced into mixed marriages.

91. An observer for a non-governmental organization of the Asian region drew attention to the fact that 500,000 of his people were living in refugee camps in a neighbouring country as a result of a civil war. He reported that this country had announced that it would close all refugee camps by the beginning of 1994 and expressed concern that forced repatriation might result in massacres by government forces, as had been witnessed before.

92. One indigenous representative recalled that his land was militarily occupied by two countries which were committing serious human rights violations. He mentioned that his people had been subjected to indiscriminate killings, torture, rape and starvation and that many of them had been put into concentration camps. Moreover, he accused the Government of systematically preventing access by reporters to the territories of his people. As a result of this policy little or no information about the events taking place had reached the attention of the world community.

93. An indigenous representative described the genocide taking place in her country. Despite the fact that democracy had been restored, indigenous territories were still under military rule. Over 600 gross human rights violations had been committed by the military forces of the Government during the past year, including looting, arson, religious persecution, detention, torture, rape, murder and mass killings. In one incident 1,600 people were burned in their village. The Government had entered into a negotiating process with the tribal peoples; however, so far it had shown no real commitment to finding a political solution.

94. Another indigenous representative stated that his people faced extinction. He described that his people, who lived in a mountainous area, were surrounded by troops and subject to attacks by helicopter gunships. Survivors were forced into desert camps, where starvation prevailed. Moreover, the Government had so far not allowed international aid agencies to bring humanitarian relief to his people.

95. The representative of Amnesty International referred to its 1992 report, the first publication focusing solely on indigenous peoples. Attention was drawn to human rights violations which ranged from the discriminatory use of the death penalty against indigenous persons and discrimination in the criminal justice system of many States, deaths in custody and extrajudicial executions, to land and resource conflicts. Indigenous peoples were often caught between two sides when internal conflicts took place.

96. Indigenous representatives from different regions of the world expressed their concern over the Human Genome Diversity Project (HUGO), which had been nicknamed the "Vampire Project". Over 700 indigenous communities worldwide had been targeted by this project, under which scientists would take blood, hair and tissue samples of indigenous peoples in order to record and examine the gene structure. This issue was of great concern because samples had been taken without any consultation with the indigenous people concerned or information about the project.


C. Protection in armed conflict

97. An indigenous observer from the Asian region described the conditions that women and children were living in because of attacks by the armed forces on the ethnic civilian population. Armed government forces were patrolling the villages, interrogating and torturing the villagers. All the men had to hide in the mountains, because they were suspected of being in the armed resistance. Soldiers stole food and raped the women, even in the presence of their children and parents. Women, including pregnant women, and children were made to carry out forced labour. In particular, women and children were used as human minesweepers. Many indigenous children died before the age of five because of lack of medicines and doctors.

98. An observer of an indigenous group noted that this year, an indigenous human rights worker was shot and killed by the armed forces while on his way to document human rights abuses. The incident was portrayed by the media as the result of inter-tribal conflicts. In her country, indigenous men are forced to participate in paramilitary groups which were used against the indigenous community. This was destroying the unity of the communities concerned; however, communities which could not fill their recruitment quota were subject to military reprisals. Military regulations had severely restricted traditional economic activities. For example, the curfew hours prevented people from cultivating fields located at some distance from the villages and had disrupted the entire agricultural cycle.

99. An indigenous observer from South America explained that her society was matriarchally based and that women formed the spiritual centre of society. That way of life was endangered because the territories of her people had been chosen for the construction of the biggest landing strip and port in the region. At the same time the region had become an important centre for drug trafficking. Women were suffering from the militarization of the area and the illnesses brought in by the soldiers. Indigenous people were often forced to carry drugs across the border which divides their ancestral lands. Therefore, the border police assumed that all indigenous women were drug traffickers and subjected them to body checks, which were carried out in an inhumane and degrading way.

100. One observer for an indigenous group spoke about the impact of internal war on children, who were bound to reproduce a climate of violence when they became adults. Many children were also materially or morally abandoned. Because of this international adoption was promoted, hence children were growing up in far-away countries and losing their indigenous identity.


D. Right to practise cultural traditions, religion and language

101. Many indigenous representatives voiced their concerns about the misunderstanding and misinterpretation of their respective cultures. While cultural traditions served indigenous peoples as a spiritual source of their identity, they were often viewed as backward and primitive by the public. It was alleged that Governments were actively oppressing indigenous cultures. One observer said that the use of his indigenous language and the wearing of traditional clothes were forbidden in schools; all written materials, including indigenous legal documents, had been destroyed.

102. An indigenous observer stated that his Government emphasized that the country had only 400 years of history, thus denying the history of the indigenous peoples who had inhabited the island for 6,000 years. He accused the Government of promoting a policy of assimilation by prohibiting the use of indigenous languages and the teaching of indigenous history. Another indigenous observer pointed out that his Government had implemented forcible religious conversion in his community. All indigenous persons who were not willing to adopt the new belief were subjected to persecution.

103. An indigenous observer, speaking on behalf of the second World Indigenous Youth Conference, emphasized in particular the demand of indigenous youth to be able to learn their own languages and learn their own histories, traditions and values.

104. An indigenous observer mentioned the lack of protection of Native American religion and sacred places in the legislation of the United States. She said that her people were facing interference with their religious ceremonies and the desecration of a sacred site. She referred to Mount Graham, the foundation of their culture, which was being desecrated by a project to build three telescopes. As their pleas to stop the project had remained unheard by the international sponsors, her people were now engaged in a lawsuit to stop the project.

105. The observer for Norway recalled that the right to learn the Sami language has been guaranteed by law for a long time. The right has been strengthened by a recent amendment to the Act on Primary Schools. Moreover, an amendment to the Sami Act had been adopted that gave Sami speakers the right to use their language in their contacts with local and regional authorities.


E. Right to education and to establish own media

106. The observer for an indigenous non-governmental organization addressed the importance of education by saying that it could serve as a vehicle for change and empowerment. In this context the third World Indigenous People's Conference: Education, which will be held in Wollongong, Australia, in December 1993, was mentioned. The theme of the conference will be: "Listen, learn, understand, teach - the answers are within us". One of its major aims will be to share educational and other life experiences between the world's indigenous peoples.

107. The observer for New Zealand reported that initiatives of the Maori community regarding education were being supported by the Government. This included using Maori language as the medium for instruction in early childhood and primary education. Further initiatives were being considered by the Maori community including secondary education in the Maori language. These developments now made the achievement of all levels of education in the Maori language possible.

108. One indigenous observer stated that education for indigenous children should not only be conducted in their own language but should also apply indigenous teaching techniques and methodologies. Under the current system 80 per cent of the children of his people did not finish primary school, only 15 per cent finished secondary school and only 1 per cent obtained a university degree.

109. An indigenous observer from Canada reported that the authorities refused to translate into French a film entitled "Acts of Defiance", which had been produced by a government agency, about the confrontation between Mohawks and the Government during the so-called "Oka crisis", because it could upset the French Canadian public. He pointed out that decisions such as those interfered with the endeavours of his people to educate the French Canadian public, which was hostile to indigenous aspirations, about indigenous affairs.

110. An indigenous observer from Hawaii reported on the newly formed Hawaiian Broadcast Corporation, a Hawaiian controlled entity which reported on indigenous affairs.

111. An aboriginal observer from Australia described how journalists had portrayed the Native Title case. He said that the press was stirring up public hysteria and the idea that aboriginal peoples were going to "steal everyone's backyard" in the wake of the decision.


F. Right to maintain their political, economic and social systems
and to develop their own strategies for development

112. Many indigenous peoples spoke of the poor social and economic conditions existing in their territories. They deplored the lack of basic health and education services, leading to high infant mortality, low life expectancy and high illiteracy rates. Others drew attention to the fact that unemployment rates were often far above the national average within indigenous communities. Some observers also addressed the discriminatory use of laws against members of the indigenous population resulting in a high percentage of indigenous among the prison population.

113. An observer for a non-governmental organization in Australia reported that owing to poor social and economic conditions the estimated average life expectancy of indigenous people was 39 years of age. An observer for a First Nation in Canada said that there were many unnecessary deaths among his people - the average age of death was 34 years - and cited statistics of 60-95 per cent unemployment, prostitution of six and seven-year-old native children and 58 per cent native persons among the inmates of one prison. An indigenous observer from South America pointed out how mass emigration from the indigenous communities to the urban centres because of the desolate economic and social conditions in their territories led to the disruption of traditional life.

114. Another problem of general concern to the indigenous observers was that the indigenous population is often unable to benefit from the overall economic development of the country. On the contrary, ill-conceived development projects often seriously affect their environment and traditional livelihood, leading to the impoverishment of indigenous communities. One observer pointed out that although his country was proud of its rapid growth in terms of gross national product, indigenous communities were still living in absolute poverty.

115. One observer alleged that development aid given by his country was at least partly used to support the militarization of an indigenous area in another country of the region. A number of observers for indigenous organizations underlined that development aid should take the interest of indigenous peoples into account. Governments and international development agencies should consult with the indigenous population concerned, in particular before carrying out large-scale development projects with great impact on the environment.

116. Various indigenous observers from Latin America stated that the privatization of State properties and services which was currently under way had adverse effects on the indigenous population. In many cases formerly State owned health, education and communications services were now run by profit-oriented private companies, which charged higher fees. This hit the indigenous peoples hard because they belonged to the poorer sectors of society.

117. One indigenous participant mentioned that his Government's development plan constituted a threat to his people. This plan comprised the construction of a geothermal power-plant in indigenous territory, as well as the conversion of traditional agricultural lands into areas for industrial purposes. He expressed the indigenous peoples' fear that they would be dispossessed and converted into cheap labourers for industrial companies.

118. One indigenous observer focused on the particular problems faced by indigenous women. The first Asian Indigenous Women's Conference, held in January 1993, had shown similar patterns of oppression throughout the region. In one country indigenous women often become prostitutes because they were either sold by their parents or tricked into it by promises of a better future. In other areas oppression of indigenous women took the form of rape and sexual harassment by military forces. In some countries tourism had been followed by sexual trafficking: young indigenous women were brought to the cities and forced to serve as prostitutes. On the other hand, health services for indigenous women were rarely available.

119. The observer for Australia recalled that last year the report of the Royal Commission into Aboriginal Deaths in Custody and the reaction of his Government to it was presented to the Working Group. He reported that his Government had committed additional funds over a five-year period to address the underlying causes of these deaths. The money would provide a means by which aboriginal and Torres Strait Islander peoples could acquire and develop land, address the problem of substance abuse, create greater opportunities for employment, education and training and support economic development.

120. The observer for Chile pointed out that there was a positive change in the attitude towards indigenous peoples. A special committee on indigenous peoples had recently been established and a law drafted on the protection and promotion of indigenous peoples' rights. This law would acknowledge the cultural and social specificity of indigenous peoples and would contain provisions for education in indigenous languages and would recognize custom as a source of law regarding rights over natural resources.

121. Another governmental observer reported that his Government had established a bureau for indigenous affairs which was entrusted with drawing up a plan for indigenous development, the particular focus of which would be the promotion of agricultural development. Reform of the agrarian law was under way, part of a broader agenda for protecting the country's biodiversity and maintaining indigenous land-management structures. His country was also about to ratify ILO Convention No. 169 of 1989.

122. According to an indigenous delegation, the authorities of their country had implemented a programme aimed at forcing them to follow the Government's economic policy. People were forced to practise sedentary agriculture, preferably lowland rice cultivation. They were also obliged to shift from a subsistence to a market-oriented economy.


G. Right to lands and territories

123. The observer for Brazil reported that a new partnership was developing between indigenous people and Brazilian society, as reflected by the extensive ongoing demarcation of indigenous land. Two hundred and seventy-two indigenous areas had already been demarcated, of which 199 had been ratified. Much remained to be done to accomplish the demarcation of all indigenous lands, and the difficulties faced by Brazil, such as lack of human and financial resources, had made the government seek international cooperation to that end. The deadline for finalizing the demarcation, which had been set for October 1993, might need to be reconsidered in context of the constitutional review process which was about to be started.

124. The same issue was addressed by an indigenous observer from Brazil who confirmed that the process of demarcation had begun in the territory of his people. He expressed concern that no legal settlement would be reached until October 1993. He reported on a huge military project which had seriously affected his people. As a first step a road had been built through the rain forest where his people lived. This gave gold miners easy access to his peoples' lands. As a result many people had died from the diseases brought in.

125. One indigenous observer reported that when his people tried to organize themselves in order to regain land which had been taken from them illegally, they had been charged with forming an unlawful association and been taken to court; 144 persons had been given prison sentences. Appeals had been made and were still pending.

126. An indigenous observer reported that in his country indigenous land rights were seriously curtailed because of a law stating that abandoned land became State property and could be sold. Often government authorities declared indigenous lands which were temporarily not used for agriculture to be abandoned, although it was well known that indigenous agriculture was based on a system in which fields after a period of use are left untilled in order to give the soil time to recover.

127. The observer for Australia reported on the Australian High Court's decision in the Native Title case, in which the High Court rejected once and for all the legal fiction of terra nullius, the notion that Australia was land belonging to no one at the time of European settlement, in other words, a fiction which was used to dispossess the indigenous peoples of Australia of their lands. The decision had been recognized by the Government as one of great moral and ethical importance to the nation and had been welcomed by virtually all Australian churches and faiths.

128. That case was also referred to by various Aboriginal and Torres Strait Islander organizations, in particular the representative of the National Aboriginal and Legal Services Secretariat. All of them welcomed the decision but cautioned that the majority of Aboriginal Australians could not benefit directly from the decision and expressed their hope that the decision would be translated into legal action. A Torres Strait Islander observer emphasized the great importance of the relationship to the land and especially of water rights. He expressed the wish to see sea rights recognized in the same manner as land rights had been recognized. Concern was expressed by an indigenous observer that Aboriginal peoples in Australia were lacking information about the case.

129. The observer for New Zealand mentioned that one major development over the last year was the passage of an Act, based on the Treaty of Waitangi, which recognized that Maori land was a valued possession inherited from the past and passed to future generations. This Act would permit the reversal of the fragmentation of land that had historically hampered tribal economic development. Moreover, the Government had issued proposals to end the perpetual right of renewal of leased Maori land and to review the rents so that they reflected market rates.

130. The observer for Canada reported on the latest developments on aboriginal land claims. The observer explained how negotiations had taken place and how agreements concerning a considerable number of Aboriginal Nations had been concluded. He described the historic agreement between Canada and the aboriginal peoples of Nunavut. Two Acts passed by Parliament in the previous month would redraw the map of Canada by 1999 and provide for a new political and economic future for the residents of Nunavut. Title by the Inuit to 350,000 square kilometres of land would be recognized and a financial payment of over C$ 1 billion, over 14 years, would be made. Additionally, the agreement included wildlife harvesting rights, subsurface rights and participation on wildlife and other resource management boards within the territory.


H. Right to protection of the environment

131. The observer for Australia stated that his Government remained committed to the concern of indigenous peoples in the south of Australia who had lost their land as a result of nuclear testing carried out by the British Government during the 1950s and 1960s. The British Government had finally agreed to contribute funds to decontaminate the sites.

132. A number of indigenous observers voiced concern about dumping of nuclear waste in their areas. It was reported, for example, that Johnson Island, near Hawaii, was being used by the United States and European countries as a storage area for nuclear, radioactive and toxic waste. One observer drew attention to the fact that the Government of his country had established an office of nuclear waste aimed at seeking waste sites on "state or Indian tribal lands". An indigenous observer from Alaska mentioned that mining industries, along with a nuclear power plant that had been built in the region, were threatening the health of his people.

133. The observer for the World Uranium Hearing Society stressed the direct link between the use of nuclear energy and the survival of indigenous peoples. Vast quantities of the world's uranium resources were located and extracted in the territories of indigenous peoples. These territories were often exploited for weapons testing and storage of dumping of nuclear substances. At the World Uranium Hearing in Salzburg, Austria, in September 1992, indigenous peoples had demanded that uranium and other radioactive minerals should remain in their natural location. The declaration adopted by the Hearing is contained in the addendum to the present report.

134. An indigenous observer pointed out that in his country, the Government's policy of locating polluting industries abroad did not only affect the lives of indigenous peoples living in his country, but also the lives of indigenous peoples in other parts of the world.

135. An indigenous observer noted the importance of clean air and water as a basis for the integral relationship between indigenous ways of life and the land. His people were facing the threat of a pulp mill and a project using the heavy-oil-stem-injection process. Both projects were diminishing the air and water quality in the area.

136. The observer for Canada mentioned the Arctic Environmental Strategy, a C$ 100 million programme designed to address the most urgent environmental problems facing the Arctic. The strategy had involved aboriginal organizations in all aspects of programme planning and delivery which was one of the main reasons for its success.


I. Cultural and intellectual property

137. A number of indigenous observers voiced concern about the fact that the knowledge indigenous peoples had gathered over centuries was being exploited by commercial companies for their own profit. One indigenous observer stated that although indigenous medicine was often portrayed as primitive or even dangerous, 7,000 natural compounds used in modern medicine had been utilized by indigenous healers for centuries. The annual market value of pharmaceutical products derived from medical plants discovered by indigenous peoples exceeded US$ 43 billion. He deplored the fact that pharmaceutical companies continued to patent products and reap huge profits from the commercial exploitation of traditional knowledge.

138. Two observers for indigenous groups referred to a plant called uña de gato (cat's nail) which had been used in the indigenous medicine in their region since time immemorial. They alleged that scientists of foreign companies had stolen the plant and the traditional knowledge associated with it and were trying to patent it. Moreover, the plant was facing extinction in their territories because of abusive extraction by traders. One observer suggested that the study dealing with indigenous cultural and intellectual property should incorporate the contents of the "Maatatua Declaration".

139. An indigenous observer expressed concern about the manufacture and distribution of an alcohol product exploiting the name of a revered chief and spiritual leader of a Native American Tribe of North America. He asserted that the use of the name was inappropriate and insulting and all the more outrageous since alcohol had exacted a terrible toll on indigenous peoples in the United States. They suffered the highest incidence of alcoholism of any racial group, the highest rate of foetal alcoholic syndrome and the highest death rate from alcohol-related syndromes.


J. Right to natural resources

140. One indigenous observer described the situation of his people who lived on the Pacific coast in an area of tropical rain forest with one of the richest biodiversities in the world. Development strategies financed by international development institutions had served mainly to provide infrastructure for the exploitation of his people's ancestral lands, through deforestation and gold-mining projects which had been carried out without consultation with the people concerned. He pointed out some of the adverse impacts these projects had on his people, who had been turned into wage-earners as environmental degradation caused by the exploitation of resources deprived them of their livelihood. Many native workers were forced to accept low-paying jobs in other areas, which led to the disruption of their indigenous communities.

141. The observer for New Zealand mentioned the Maori Fisheries Settlement of September 1992 which had resulted in the effective control by Maori of 40 per cent of the New Zealand commercial fishery resources in exchange for the withdrawal of all cases against the Crown relating to Maori fishery claims. Other indigenous observers complained about the procedure that led to the agreement and said that the Maori Fishery Settlement was not supported by many tribes.

142. An observer for an indigenous people living in Canada accused a pulp and paper company of dumping effluents into her people's traditional fishing waters and destroying the salmon fishing. This interference with the livelihood of the local indigenous population had been a direct breach of aboriginal fishing rights.

143. An indigenous observer stressed the importance of water rights. The Water Code of her country recognized indigenous water rights, but it was not sufficiently put into practice. Many indigenous farmers and homesteaders were without an adequate supply of water for traditional forms of subsistence agriculture, while resort developments and commercial enterprises such as golf courses, hotels and sugar cane fields used this precious resource.


K. Right to the observance of treaties and other legal arrangements

144. An indigenous representative voiced the fear that the possible secession of a part of the country in which his people's territories were living might split up their lands and might put treaty obligations into question.

145. An indigenous speaker underlined the continuing violation of treaties by legislation passed by the Government of Canada, as a result of which the Government was devolving unilaterally its fiduciary trust obligations to the provinces. However, he expressed the hope that as a result of pressure from the international community the Government would once again recognize the nation-to-nation treaty relationship established by their respective ancestors.


IV. STUDY OF TREATIES, AGREEMENTS AND OTHER CONSTRUCTIVE
ARRANGEMENTS BETWEEN STATES AND INDIGENOUS PEOPLES

146. Mr. Miguel Alfonso Martínez, the Special Rapporteur of the Sub-Commission on treaties, agreements and other constructive arrangements between States and indigenous populations, gave the Working Group an introduction to the first progress report of his study (E/CN.4/Sub.2/1992/32) on 30 July 1993. He apologized to the Working Group for the fact that the report had not been available to the Group at its previous session. He recalled that he had given an oral presentation of his report at the 1992 session and mentioned that the English version of the text had been made available to the Sub-Commission at its forty-fourth session.

147. Good progress had been achieved in the research work since September 1991. However, the disappointingly small number of replies to the Special Rapporteur's questionnaire, especially from indigenous peoples, continued to hamper the progress of the study. He urged indigenous peoples and Governments to provide the necessary information as soon as possible.

148. The Special Rapporteur drew attention to the function of the progress report by referring to the list of purposes stated on page 8 of his report. He gave a short summary of the contents of each of the chapters of the report, which broadly reflected those purposes.

149. Chapter one focused on the research and other activities so far undertaken. Chapter two centred on some anthropological and historical considerations on key issues relevant to the study. The Special Rapporteur explained that he had given special emphasis to the ethnocentrism and in particular the eurocentrism prevailing in many analyses of treaty relationships between indigenous peoples and States. Moreover he had included case studies on recent decisions in which the interpretation of indigenous issues from the view-point of non-indigenous values was particularly obvious.

150. Chapter three on the first encounters between indigenous peoples and other civilizations, had led him to the first major conclusion, namely that in those first encounters, which took place during the sixteenth century, there had been a trend to treat indigenous peoples as subjects of international law. Subsequently, relations of nation States with indigenous peoples had been perceived as matters of purely internal jurisdiction.

151. Chapter four focused on the diverse juridical situations within the scope of the study. He had established a typology of five situations, a description of which was contained in the report of the tenth session of the Working Group (E/CN.4/Sub.2/1992/33). The analysis of the extensive material gathered showed that the policy of regulating the relationship between indigenous peoples and States by means of international law had been widely followed by Britain and France, but less so by Spain and Portugal. In the case of Latin America it was only recently that he had received solid evidence suggesting the existence of at least some treaty relationships. The last chapter contained the conclusions and recommendations of the report. Concluding his presentation Mr. Alfonso Martínez invited the Working Group to make critical comments on his study to help him improve his work.

152. The Chairperson-Rapporteur congratulated Mr. Alfonso Martínez on his progress report and thanked him for his introductory statement. In the subsequent discussion indigenous representatives expressed their full support for the Special Rapporteur's work and highlighted the importance of the study, in particular in view of the fact that the treaty relationships between indigenous peoples and States had been misunderstood and misinterpreted so frequently.

153. Indigenous representatives emphasized that they were frequently confronted with government disregard of treaty obligations. Some representatives said that they were currently engaged in time-consuming law suits over treaty rights. They noted that national law was considered to be the exclusive source of law, thus leaving no place for indigenous law, and that government authorities and courts often perceived indigenous titles more as a hindrance to the settlement of disputes than as a source for their resolution.

154. Indigenous representatives stressed that the spiritual and non-written elements of treaties had great importance for indigenous peoples. One representative illustrated that point by describing how one of his elders had passed knowledge about treaties to him by using objects to explain the spirit in which a treaty was concluded: a bag made of deer skin, representing the idea of sharing; a sacred pipe, representing truth and strength; and sweet-grass, representing kindness. He reported that the elder had concluded by telling him that his people were kind people, willing to share their land, but that as a result they had little left now but truth and strength.

155. Other indigenous representatives expressed the view that the report in its present state did not focus enough on the situation in Latin America. In that context particular mention was made of the situation in Argentina, where an extensive body of treaties and agreements existed. They emphasized that they would like to see a more balanced approach towards the different regions of the world in a future report.

156. A representative of the Mikmaq Council suggested that the Special Rapporteur should look more closely into the role of the Holy See in the conclusion of treaties with indigenous peoples, because he felt that the Church had played an important role in treaty-making in the Americas, in particular during the sixteenth and seventeenth centuries. He also suggested that the work of the Special Rapporteur could be associated with the work of the International Law Commission, preferably through an exchange of views on the question of treaties between indigenous peoples and States. Lastly, he suggested that the United Nations should organize a seminar on the use of modern-day treaties for the furtherance of indigenous peoples' rights and that a register of treaties concerning indigenous peoples should be established.

157. The Special Rapporteur thanked the participants for their support of the study and their comments. He said that he could accommodate most of their concerns in his study and assured the Working Group that the study would be continued to its proper completion. Mr. Alfonso Martínez promised to submit his second progress report to the Working Group at its twelfth session.

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