11th Session (Geneva, 5 to 16 December 2005)

First Impressions

By Resolution 1995/32 the Commission on Human Rights (the Commission) established an open-ended inter-sessional working group with the purpose of elaborating a draft declaration on the rights of indigenous people (the Working Group). The Working Group is mandated to consider and elaborate upon the 1994 draft text1 of the Sub-Commission on the Promotion and Protection of Human Rights (the Sub-Commission) within he International Decade of the World's Indigenous Peoples (1994-2004). The mandate of the Working Group has been extended into the Second International Decade of the World's Indigenous Peoples (2005-2015). The final week of the 11th session will take place from 29 January to 3 February 2006

Overview

The dynamics of the Working Group reflected the urgency to make substantial progress during this session. The Chair of the Working Group, Mr. Luis-Enrique Chavez (Peru) stressed the real need to achieve a consensus on the draft Declaration by the end of this year's session.

Since the Working Group last met, there have been two informal meetings to help advance the adoption of the draft Declaration; an international workshop held in Patzcuaro, Mexico and an experts meeting organised by indigenous peoples representatives in Montreal, Canada.

Despite several tense moments during negotiations on difficult issues such as self-determination and land, territories and resources, many participants were cautiously optimistic about having the draft Declaration completed during this session.

Over 60 indigenous peoples’ representatives actively participated in the Working Group. However, several indigenous peoples’ representatives felt that their participation was often "window dressing" arguing that their proposals were not being given adequate consideration by the Chair and the Working Group.

Self-Determination

There remained difficulty in finding the balance between delegations such as Australia, New Zealand, the United States of America (the USA), the United Kingdom (the UK), and France, who wished to preserve the rights of States, and delegations such as Venezuela, Brazil, Mexico and Denmark, who wished to ensue maximum protection for the rights of indigenous peoples.

State delegations, such as Australia, New Zealand and the USA maintained a hard-line approach on the issue of self-determination, stating that reference must be made to preserving the territorial integrity and political unity of States in the operative parts of the draft Declaration. These delegations stated that the adoption of many articles depends on the inclusion of an Article 45 referring explicitly to the territorial integrity of existing States.

Indigenous peoples representatives urged State delegations to ensure that Article 3 of the draft declaration affirming the right of self-determination for indigenous peoples remains unchanged from the Sub-Commission text.

Some State delegations such as the UK and the USA stated that this declaration is articulating a right of self-determination for indigenous peoples that is different from the Article 1 right of self determination in the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Lands, Territories, and Resources

Upon the urging of indigenous peoples representatives, the Working Group agreed to consistently use the phrase "lands, territories, and resources" rather than "lands or territories" throughout the draft declaration. In addition, the phrase "free, prior and informed consent" will also be used consistently throughout the text.

State delegations expressed concern over wording in Article 10 prohibiting forcible removal and relocation of indigenous peoples, which some delegations felt would impair the ability of States to move populations in emergency situations, such as natural disasters.

Some indigenous peoples preferred the language from the original Sub-Commission text which refers to "land, territories, and resources which they have traditionally owned, or otherwise occupied or used" stating this language is broader in scope and did not limit the rights of indigenous peoples to only those lands and territories they currently own.

Indigenous peoples preferred strong langue on articles that referred to their means of subsistence and compensation when deprived of them.

Some State delegations preferred the use of the broader term "redress", arguing that this wording includes more avenues of remedies. However, many indigenous peoples representatives preferred explicit reference to specific forms of redress such as restitution where lands, territories and resources have been unjustly taken from them.

In addition, some States wanted to express the right of redress as a procedural right preferring terms such as "entitled to effective mechanisms for redress" and "right to pursue claims for". Indigenous peoples representatives insisted on stronger language that affirms the substantive right to redress.

Treaties

An informal consultation on treaties also took place during the session facilitated by an Indigenous representative, Mr. Willie Littlechild.

The UK expressed concern over language that refers to the "inherent rights" of indigenous peoples to their lands, territories, and resources stating that in the UK the term "inherent rights" has a distinct legal meaning referring to rights conferred to individual human beings and not to collective rights of groups or peoples.

After extensive consultation, the term "treaties, agreements and other constructive arrangements" was agreed upon with the understanding that constructive arrangements would be understood as meaning "any legal text or other documents that are evidence of consensual participation by all parties to a legal relationship".

Provisional Adoption

The delegation of Norway facilitated an informal consultation group to determine which articles are ready for provisional adoption.

Several important preamble paragraphs (2, 3, 4, 7, 8, 9, 11, 17, 18. 19) and operative articles (4, 6, 9, 14, 16, 17, 24, 37, 41, 44) were moved into the list of articles that can be provisionally adopted.

In addition, a few articles were moved to the list of articles that are close to being adopted but needed further discussion to reach a consensus.

The Norway facilitator stressed that the adoption of these articles are only provisional and that "nothing is agreed upon until everything is agreed upon".

Source: ISHR