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Article Excerpt
[For over twenty years, indigenous peoples have worked toward the adoption of the United Nations Declaration on the Rights of Indigenous Peoples. When the Declaration was passed on 13 September 2007, it was a triumph for indigenous peoples who had struggled with the rigidities of standard-setting in the UN system. The drawn out process of standard-setting was also a reflection of the complex issues that Member States' had to grapple with, including acceptance of indigenous peoples' right to self-determination in international law as well as recognition of indigenous peoples' right to lands, territories and resources. This article describes the long process towards the Declaration for indigenous peoples and states, focuses on the frustrations of UN standard-setting for indigenous peoples and explains the importance of the Declaration for indigenous Australia.]
CONTENTS I Introduction II The Historical Development of the Declaration on the Rights of Indigenous Peoples A Who are Indigenous Peoples? B Standard-Setting in the UN Working Group on Indigenous Populations. C Participation in the Working Group III The Politics of the Indigenous Declaration A The Controversy of the Working Group's Procedures 1 The Skill of the Chairperson-Rapporteur 2 The Indigenous 'No Change' Position 3 Breaking the Deadlock 4 The Breakthrough 5 Some Observations on the Process B Adopting the Declaration: The African Delay 1 The Advisory Opinion of the African Commission on Human Rights C Reflections on the Most Controversial Provisions 1 Indigenous Peoples' Right to Self-Determination 2 The Sell-Determination Compromise 3 Translating Self-Determination into Domestic Systems: What Does It Mean? 4 Collective Rights 5 Land and Resources IV The Way Forward A The Legal Status of the Declaration 1 Immediate Impact 2 From a Declaration to a Convention? 3 The Impact of the Declaration on Australian Law B The Federal Government's Position--Explaining the Delay V Conclusion
I INTRODUCTION
The United Nations Declaration on the Rights of Indigenous Peoples was adopted on 13 September 2007 as a non-binding, aspirational declaration of the General Assembly. (1) The adoption of the Declaration was a triumph for indigenous peoples after persevering for more than 20 years to secure an international instrument aimed at recognising the distinct cultural rights of indigenous peoples and providing redress for the injustice of dispossession. It was also a triumph for the United Nations, which had made the adoption of such a declaration the major objective of the UN International Decade of the World's Indigenous Peoples (1995-2004). (2)
Even so, the Commission on Human Rights' open-ended inter-sessional Working Group elaborating the Draft Declaration ('WGDD') laboured for over a decade to negotiate the final draft. (3) The protracted and polemical debate that defined 11 years of drafting resulted in only two articles being provisionally adopted between the first drafting session in November 1995 and the 10th session in 2004. (4)
This commentary describes the long journey toward the Declaration undertaken by the international indigenous peoples movement. Since its early engagement with the UN in the 1970s, an international legal instrument has been a major goal of the movement. As an indigenous lawyer and academic who participated in the drafting process, this commentary aims to provide an insight into UN standard-setting from an indigenous perspective. Indigenous peoples' reflections on standard-setting in the UN system are important because the development of the Declaration was the first time that states had drafted a human rights instrument directly with the rights-holders empowered by the instrument. As a consequence, the divergent expectations of the Member States and indigenous peoples collided, resulting in a drawn-out and often tense process. While there has been significant discussion on the Declaration in draft form, its adoption provides an opportunity to expound upon indigenous peoples' experiences of standard-setting in the UN human rights system. (5)
Part II of this commentary will trace the development of indigenous engagement with the UN and eventually the proposal for a declaration. Then, Part III will unmask the complex politics of the WGDD, revealing indigenous frustrations with the process and explaining how the impasse between states and indigenous peoples at the WGDD was disrupted in the final years, avoiding closure by the Council on Human Rights. This part explores two less-examined issues in the literature on the Draft Declaration: the role of the Chairperson of the WGDD and the indigenous 'no change' negotiating strategy. These examples are pivotal because they contributed to the initial slow progress and yet, in the end, the reversal of the indigenous 'no change' strategy and the Chairperson's last minute, innovative working methods converged to create momentum for the Working Group.
Due to the lack of consensus on the substantive issues of self-determination, collective rights and land, the Chairperson of the WGDD attempted to reconcile the divergent interests of indigenous peoples and states in a 'Chairperson's text' that was submitted to the Council on Human Rights and eventually transmitted to the General Assembly. However, during the debate in the Third Committee of the General Assembly (Social, Humanitarian and Cultural Committee), indigenous peoples faced another setback as the African Group delayed consideration of the Declaration for a year while seeking legal advice on the implications of self-determination and collective rights for African countries. (6) Part III concludes by describing how the African groups' concerns were addressed and the Declaration adopted.
Part IV is a reflection on the most controversial provisions of the Declaration, the right to self-determination, collective rights and lands, territories and resources. This section reveals the chasm between states and indigenous peoples during the drafting sessions but posits that since the adoption of the Declaration the legal environment has changed for both indigenous peoples and the states.
Part V concludes by addressing some of the issues for Australia in endorsing the Declaration. The Declaration is non-binding and aspirational and does not require ratification through Australia's treaty process. However, the Federal Government has not yet endorsed the Declaration despite an election commitment to do so in 2007. (7) This delay is causing anxiety in Aboriginal and Torres Strait Islander communities who have relied on international law to close the protection gap in human rights pertaining to indigenous peoples. (8) The Australian Government has stated that it will endorse the Declaration but it is currently undergoing consultations with states, territories and other stakeholders regarding its impact. This is unusual given the Declaration will have no legal effect in Australian law. It does, however, illustrate the political sensitivity of indigenous rights in Australia. Further, the caution may be compounded by community confusion and ambiguity surrounding the concept of customary international law. (9) The commentary concludes by suggesting the practical use of the Declaration for the state and for Aboriginal and Torres Strait Islander peoples in Australia.
II THE HISTORICAL DEVELOPMENT OF THE DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES
A Who are Indigenous Peoples?
The first serious response by the UN to the issue of indigenous peoples was when the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities commissioned the Special Rapporteur, Jose Martinez Cobo, to conduct a comprehensive study of discrimination against indigenous peoples. (10) The Cobo Study was the first of its kind in the world and provided a detailed survey of the ways in which indigenous peoples suffer discrimination in the areas of health, housing, education, cultural rights, land rights, political rights and the administration of justice. One of the most influential outcomes of the study was Cobo's comprehensive definition of indigenous peoples. Cobo constructed a 'working definition' of indigenous peoples as
those which, having a historical continuity with pre-invasion and pre-colonial societies ... [who] consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. (11)
While this definition is the most frequently cited, it is technically not an official definition of indigenous peoples and there is no definitive characterisation. (12) According to the UN Permanent Forum on Indigenous Issues, no formal universal definition of the term is necessary and for practical purposes the Cobo definition is an accepted understanding only. (13) For some states, the Cobo definition is utterly unacceptable, in particular Asian and African Member States, which have argued in the past that no indigenous peoples exist in their regions and that 'indigenous' groups are actually minority groups. (14) The lack of a formal definition informed the African Group's decision to defer consideration of the Draft Declaration in 2006. (15)
During the two decades over which the Cobo Study was undertaken, indigenous peoples began to form alliances with civil society groups and their voice and presence at UN human rights forums increased. (16) This advocacy led to widespread dissemination of information about the dispossession of indigenous peoples' lands. The purview of this advocacy was that dispossession did not conclude with colonisation as there are continuing, contemporary manifestations of dispossession. The stories told by indigenous representatives revealed a remarkably similar impact of colonisation upon indigenous peoples' lives worldwide. (17) Regardless of the diverse economic, political and social situations in which the world's indigenous peoples live, the narrative of the indigenous plight reflected loss of lands, loss of autonomy and control, loss of languages and discrimination in municipal laws and policies. The UN has estimated the world's indigenous population to be over 300 million in over 70 different countries, and indigenous lobbying focused on ways in which the UN could provide greater scrutiny of the way in which states treat indigenous peoples behind the shield of state sovereignty. (18) This lobbying led to the establishment of the UN Working Group on Indigenous Populations ('WGIP'), the first human rights mechanism established to consider indigenous issues.
B Standard-Setting in the UN Working Group on Indigenous Populations
The WGIP was established by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities in 1982 as authorised by the UN Economic and Social Council ('ECOSOC'). (19) It was comprised of five independent members and its mandate was to review 'developments pertaining to the promotion and protection of the human rights and fundamental freedoms of [i]ndigenous populations ... [and] to give special attention to the evolution of standards concerning the rights of such populations'. (20)
The first aspect of the WGIP mandate--the review of developments--enabled the WGIP to gather information about the historical and contemporary experiences of indigenous peoples through their oral and written interventions. This information gathering was aided by a flexible working procedure and 'innovative rules' that enabled widespread indigenous participation. (21) This flexible and innovative Working Group engendered a casual environment that permitted frank and fearless discussion about the conduct of states that would not ordinarily be permitted in UN mechanisms further up the UN hierarchy. The latter aspect of the mandate--standard-setting--led to the development of the Declaration.
It was during its fourth session in 1985 that the WGIP resolved to elaborate an international instrument on indigenous rights. (22) The purpose of this would be to address the protection gap in international human rights law of legal standards pertaining to indigenous peoples. (23) Even though the drafting was formally undertaken by the five independent members of the WGIP, indigenous peoples participated actively in the drafting of the text. (24)
The standard-setting mandate enabled the expert members to substantively respond to the issues that indigenous peoples had raised during their oral and written interventions. The Draft Declaration (25) produced by the expert members was lengthy and over-elaborated for an international human rights instrument. Burger acknowledged that the draft, with its 19 preambular paragraphs and 45 articles, was 'unusually long--undoubtedly a result of its efforts to encompass all the diverse experiences brought to the attention of the Working Group'. (26) Indigenous peoples were proud that each article was a reflection on the experiences of indigenous peoples both historically and today:
Every paragraph of the Draft Declaration is based upon known instances of the violations of the human rights of indigenous peoples. There is nothing theoretical, abstract, or speculative about the substantive content of the Draft Declaration. The Draft Declaration began from a cry from the indigenous peoples for justice, and it is drafted to confirm that the international standards which apply to all peoples of the world apply to indigenous peoples. It is an inclusive instrument, meant to bring indigenous peoples into the purview of international law as subjects of international law. (27)
The final text of the Draft Declaration was concluded by the WGIP in 1993 and was followed by a technical review by the Secretariat. (28) Finally, in 1995, the Commission on Human Rights ('CHR') established an open-ended, inter-sessional working group to elaborate a draft declaration. (29)
C Participation in the Working Group
The WGDD, as a CHR working group, would normally require indigenous peoples to have ECOSOC non-governmental organisation consultative status. This consultative status is vital to the capacity of indigenous peoples to participate in the more restrictive UN bodies such as ECOSOC. (30) In the case of the WGDD (like the innovative working procedures of the WGIP) special arrangements were made to enable broad indigenous participation with observer status for indigenous observers. (31)
A specialist procedure was agreed upon permitting those without ECOSOC consultative status to apply to the Indigenous Secretariat at the Office of the High Commissioner of Human Rights for authorisation to attend the WGDD. (32) In determining authorisation, the Secretariat took into consideration the objectives and expertise of the indigenous organisation and consulted the relevant Member State. The UN Voluntary Fund for Indigenous Populations, which had been established to fund activities in the International Decade of the World's Indigenous Peoples, provided the funding for indigenous peoples to attend the WGDD.
III THE POLITICS OF THE INDIGENOUS DECLARATION
A The Controversy of the Working Group's Procedures
From the outset, the WGDD faced ostensibly insuperable problems--a constant struggle between indigenous observers and Member States over content and process.
This section analyses the two main reasons behind the slow progress of the WGDD. It is divided into two parts, the first is a discussion of the role of the Chairperson in the protracted debate and the second is a discussion of the indigenous caucus's 'no change' negotiating strategy in the WGDD.
1 The Skill of the Chairperson-Rapporteur
Indigenous observers' relationship with Chairperson-Rapporteur Chavez was fraught with difficulties from the beginning. They found him to be inconsistent and that he gave excessive weight to the objections of Canada, Australia, New Zealand and the US (the CANZUS Group) in seeking consensus on the text. These states were perceived as being obstructionist in their conduct and as persistent objectors to provisions relating to the right to self-determination and lands, territories and resources.
One of the major clashes between Member States and indigenous observers emerged in the seventh session when indigenous observers raised concerns with the Chairperson about the states' private drafting sessions, conducted during the two weeks allocated by the UN for the WGDD. (33) These 'informal' consultations also involved the drafting of 'non-papers', which were, in fact, an alternative text to the Draft Declaration. These 'informal' consultations and 'non-papers' led to heated debate about the good faith and transparency of the process. (34)
Informal consultations and private meetings are not...
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