Resolutions on Indigenous Issues

GENERAL

This session of the Commission was presented with seven resolutions dealing with Indigenous Issues. Three of the resolutions are prepared by member States of the Commission – these are ‘traditional’ resolutions which closely follow the format of the previous session – and four resolutions (actually, one resolution and three decisions) which have been prepared by the last session of the Sub-commission on the Promotion and Protection of Human Rights.

All seven resolutions were passed without amendment. Some resolutions attracted some attention and resistance, but this was not unexpected or unusual.

RESOLUTIONS

1. Resolution on the WGIP and the Second Decade of the World’s Indigenous Peoples

This resolution is drafted by Cuba. If follows the resolution passed last year, also prepared by Cuba. New Zealand had previously prepared the resolutions on WGIP so there was some tension last year resulting in (further) hostility towards Cuba, and the resolution, by the usual States.

Representatives of Indigenous Peoples participated in the drafting discussions and had the opportunity to go through the text in detail.

The resolution recommends that ECOSOC authorise the next session of the Working Group and sets the theme – Traditional Knowledge. It also asks the Chairman of the WGIP attend the Permanent Forum session to present the WGIP report. The western States strongly oppose the continuation of the WGIP and therefore will vote against this resolution for that reason (and their dislike of Cuba). In the drafting Cuba agreed reluctantly to take out reference to the UN reviews of the mechanisms dealing with Indigenous Issues. Cuba wanted the reference included because it prevented any further attempts by States wanting to abolish the WGIP. Those States want it out because the debate on the reviews at last ECOSOC was ‘blood on the floor’ and left a bad feeling. The States said it was a dead issue but Cuba is wary.

The resolution, in a second part, deals with the second Decade. The main purpose of the second part was to ensure that the Commission for Human Rights maintained a high profile in the promotion of the decade. It also provides a process for the WGIP to contribute to the Plan of Action for the decade, at a late stage of its preparation, and before it goes for General Assembly approval at the end of the year.

After listening to Cuba’s presentation of the resolution, the USA spoke against the resolution, saying the WGIP was redundant, with standard-setting being undertaken by the Working Group on the Draft Declaration and the Permanent Forum dealing with Indigenous issues at a high level. The USA wanted the five meeting days used to add to the sessions of the other Working Group on the draft declaration. No other State spoke. The USA called for a vote.

RESULT – 39 in favour; 13 against; 1 abstention. (Finland abstained)

2. Resolution on the Working Group on the Draft Declaration

NOTE: This resolution has been the red-hot issue since the commencement of this session. Petitions (and delegations) have been received from Indigenous Peoples organisation by the President of the Commission, the ‘Expanded Bureau’ and the High Commissioner. One faction was calling for a pause in the work on the declaration, and the other faction was strongly opposing such a pause. This sudden and intense debate caused States to become confused on Indigenous reactions to the positions of the Commission. A relatively large number of Indigenous delegates participated in the session to express their views.

This resolution has always been drafted by Canada. The wording has always been consistent and conservative, claiming progress being made and seeking authorisation of another session. Like last year, the resolution left open the option for additional sitting days. This resolution is normally adopted by consensus.

Representatives of Indigenous Peoples attended the open discussions on this draft resolution, but these discussions did not specifically argue the language of the text. The discussions were kept to the issues. Specific drafting occurred in closed meetings of States. Indigenous representatives complained about the lack of participation and transparency in the drafting stages, claiming that their views on text must be given weight.

The extra elements in this year’s resolution were the urgings for progress and greater efforts which came from the General Assembly resolution on the second decade and the High Commissioner’s report on the first decade. The High Commissioner’s report called for ‘new and dynamic’ methods of work. (The High Commissioner also has made it clear in her public statements that all priority and attention must be focussed upon the completion of the declaration.) Despite strong requests from the Indigenous representatives, Canada resisted the call for use of more specific language from these sources in the resolution. Indigenous representatives asked Canada, in its presentation of the resolution, to make a short statement as prepared by the Indigenous groups. Canada said it would make a statement ‘along the lines’ of the prepared paragraph.

Canada’s opening statement to present the resolution was brief. It mentioned that there were a number of proposals raised during drafting but found a strong view that progress was being made, including from Indigenous Peoples’ representatives. Canada called for consensus on the resolution.

USA then proposed their amendment, to complete the draft before the next session of the commission and have twenty sitting days.

Canada, Guatemala, Mexico and Finland then spoke against the USA amendment and called for the amendment to be defeated and the resolution adopted by consensus. Canada emphasised the importance of completing the work for a ‘strong and effective’ declaration. Canada also stated ‘the existing text is the acceptable balance leading towards that goal’. It was quite a forthright comment emphasising the existing text. Guatemala and Mexico highlighted the proposed workshop to be hosted by Mexico sometime this year. Mexico said the workshop is intended to ‘build bridges of dialogue and find new ways to approach tough issues’.

The President put the amendment to the vote.

RESULT – 2 in favour; 49 against; 2 abstentions (USA and Australia voted in favour; Togo and Rumania abstained)

The USA then said that the Commission should establish a clear mandate for the work to conclude by next session. It called for a vote on the resolution, thus signalling a consensus would not be achieved. Australia spoke to say it will support the resolution but wanted the work to conclude by next session. The President then called for the vote.

RESULT – 55 in favour; 0 against; 1 abstention (USA abstained)

3. Resolution on the Special Rapporteur on the human rights and fundamental freedoms of Indigenous People

Although this resolution proved to be the least contentious, it is perhaps the most important. This resolution deals with the mandate of the Special Rapporteur (which was renewed in last year’s resolution for another three years). This resolution picks up the reports of the Special Rapporteur, responding where appropriate, and notes the theme for the next report. It has twenty operative paragraphs, with many interesting issues.

Indigenous Peoples representatives participated in the discussions on this draft. The process included specific drafting of text. This was perhaps the most inclusive process of the three resolutions. Participants can be added to an email list coordinated by Guatemala, and receive the drafts by email, as they are issued.

Guatemala introduced the resolution in a short statement, pointing out that the topic of his next report will be on constitutional reform, legislation and implementation of laws regarding the protection of the rights of Indigenous Peoples. The resolution also calls upon the Special Rapporteur to prepare a study on the best practices to implement the recommendations of his reports.

No States spoke on this resolution, a sign of consensus rather than indifference or opposition. The President put the resolution to the meeting and declared it adopted by consensus.

RESULT – Consensus

4. Sub-Commission Draft Resolution 1 – Protection of Indigenous Peoples in time of conflict

All recommendations from the Sub-commission must be considered. They do not require sponsorship by State members of the Commission. However they are not considered if they are ‘overtaken’ by a Commission resolution. These resolutions from the Sub-commission are considered last under the agenda item.

This resolution arises from the discussions in the WGIP, and a subsequent resolution in the Sub-Commission. Some States believed that this resolution was overtaken by Guatemala’s resolution on the Special Rapporteur, because there was an operative paragraph in that resolution dealing with genocide (Para.10). However that paragraph was not sufficiently specific to deal with all matters in the Sub-Commission draft. The text sets out specific steps for the Secretary General to address genocide against Indigenous peoples, and for the Special Rapporteur to also take steps.

The United Kingdom spoke against the resolution saying that the previous resolution dealt with the matter, and that the Commission cannot request the Secretary General to go beyond his mandate. No other State spoke. The President called for the vote.

RESULT – 35 in favour; 13 against; 4 abstained (It was mainly the western States that opposed the resolution. Congo, Japan, India and Togo abstained.)

5. Sub-commission Draft Decision 4 – Study on Indigenous Peoples’ permanent sovereignty over natural resources

This study is well-known, and raises important issues about the ownership and control by Indigenous Peoples of, not only lands and territories, but also surface and sub-surface natural resources.

Australia asked for the vote, without expressing an opinion. Pakistan spoke to say that it was regrettable that a vote is to be recorded, talking of the excellent work of Madam Daes and that if it was not supported it would represent a waste of time. Cuba expressed surprise at the call for a vote, saying that a call to vote is an expression of opposition but members do not know why a vote is being called. The Chairman called for the vote.

RESULT – 38 in favour; 2 against; 12 abstentions. (Australia and USA were against. The abstentions came from the EU and a few others.)

6. Sub-commission Draft Decision 5 – Legal Implications of Disappearing States, with particular reference to the rights of Indigenous Peoples

This is Francois Hampson’s study, which arises from the WGIP. It was noted by the Commission at the last session. This resolution continues the study. There does not seem to be any contention, given the lead-up support.

The resolution was considered under Agenda Item 17 (Promotion and Protection of Human Rights), and not Item 15 (Indigenous Issues)

The President called the vote.

RESULT – 51 in favour; 2 against; 0 abstentions. (Australia and USA voted against the resolution.)

7. Sub-commission Draft Decision 7 – Working Group on Indigenous Populations

This resolution requests that ECOSOC authorise the next session of the WGIP. It is overtaken by Cuba’s resolution, as listed above (see Sub-heading 1). No discussion or decision eventuated.

COMMENTS

All resolutions on Indigenous issues were successful. Taking into account some of the lead-up controversy and the spoiling tactics of USA and Australia, the outcome could be considered to be highly successful.

The increased involvement of Indigenous Peoples in the CHR session has been beneficial and should lead to more activity in the future. More networking is likely to occur in advance of the Commission sessions.

The resolutions, although conservative on topical issues, represent a strong position in the Commission in favour of Indigenous Peoples. The opposition, when expressed, came from the western countries, typified by USA and Australia as the most conservative, and the European Union. Holding 9 votes on the Commission the position of the European Union will become increasingly important on Indigenous issues. The contest within the EU exists between the conservatism of the UK – who will chair the EU from 1 July – and the support of the Nordic States, represented on the Commission by Finland at the moment.

The resolutions do carry positive results. There is continuing emphasis on the second decade. The pressure has built up for the conclusion of the draft declaration, but particularly with concern about the strength of the declaration. The role of the Special Rapporteur, and his activities, are building into a realisable force. The study on Indigenous Peoples’ Permanent Sovereignty over Natural Resources has gained further prominence.

Indigenous Peoples are realistically participating in decision-making by States at the Commission level with positive results, although this is still at the embryonic stages. In the past, such interaction occurred in the non-State forums. The Commission is, so far, the highest level of open and direct interaction in the UN.

UNITED STATES OF AMERICA

The attitude of USA towards the Commission could be described as arrogant. The statements consistently compare the UN positions to USA domestic positions with the implication that the USA position is the superior standard. The USA makes an issue of opposing almost everything in the Commission, even in situations where silence would be the wiser option. The USA wants the whole room to know where it stands on everything, as if that were an extremely important consideration.

On the Indigenous issues, the USA clearly is trying to dictate the outcome. Its positions on the resolutions suggest that the USA has ‘dug in’ and is planning to turn everyone else around to its agenda. Their statements are deceiving, by claiming high ground intentions and support for Indigenous rights, by being fundamentally opposite of statements made in the Working Group sessions, and by being deliberately dismissive of or misleading on its actions.

Of the six resolution which were considered, and approved by the Commission, the USA opposed four and abstained from one. The abstention is highly significant because it blocked a consensus. This creates a dilemma for Indigenous Peoples participating in the draft declaration process because the working definition of consensus is when no opposition is voiced. So for what purpose did the USA abstain, rather than allow a consensus? Would USA apply the same logic in the draft declaration process and prevent consensus?

Only one resolution was allowed by the USA to go to consensus.

AUSTRALIA

Like the USA Australia opposed most of the resolutions. Australia opposed four of the six resolution, supporting the consensus on the Guatemala resolution on the Special Rapporteur and voting in favour of the resolution on the draft declaration (after voting with the USA in the attempt to limit the work to one year only.)

Australia is seen to be a State with much interest in limiting the development of Indigenous rights because those rights would be higher than current and historic domestic policy. Madam Daes’ study, for example, is very challenging. Australia is receiving a lot of attention from CERD because of its discriminatory laws on Indigenous title. Those laws provided minimal recognition of Aboriginal rights to land, but are clearly opposed to the concept of Aboriginal ownership and control of natural resources. In this context, it is comprehensible that Australia will continue to strongly oppose the elaboration of rights and standards.

EUROPEAN UNION

Although many, perhaps most, members of the European Union do not feel that Indigenous rights will impact upon their domestic situations, there is still a great reluctance to see Indigenous rights emerging in law, and perhaps even changing legal structuring. The emerging status of Indigenous Peoples, combined with the claim for rightful empowerment and recompense, is seen by European States as a threat. This is perhaps because the ghosts of past colonisations may pay a visit, and perhaps because the international order, structured around the sovereignty of States and the freedom of economic trading, is threatened by a new team of players who do not blindly accept the legitimacy of the umpire or the rules, and who claim ownership of the ball.

European conservatism is upheld by the United Kingdom which claims to be absolutely disinterested with the content of Indigenous ‘business’ and pretends to be completely absorbed in quoting or otherwise inventing ‘the commandments’.