a Draft Declaration on the Rights of Indigenous Peoples

Geneva, 03 February, 2006

Agenda Item: Articles 31, 45 and 45bis

(Autonomy & Self Determination and Third Party Rights)

Joint Statement by

Taungya, American Indian Law Alliance, Association of the Shore People, Programa Pueblos Indigenas del Cealp, Asociacion Napguana, Wara Instituto Indigena Brasileiro, Aotoroa Indigenous Rights Trust, Comision de Juristas Indigenas de Argentina, Centro de Estudios disciplinarios Aymara, International Indian Treaty Council, Association TAGAZT Djanet Tuareg people, Culture et d, Co-ordination Autochtone Francophone (CAF), Unissons-nous pour la Promotion des Batwa (UNIPROBA), (IPACC, Tamaynut, World Amazish Congress, African Caucus, and JOHAR

On Article 45

The indigenous peoples’ delegations joining together in this statement are conscious of the fact that the enjoyment of the rights and freedoms referred to in the Draft Declaration, as in other human rights instruments, must be balanced with the rights and freedoms of others. However, the manner in which such enjoyment of rights is to be balanced cannot, and should not, be determined in an instrument of this nature. Firstly, the detailed nature and extent of the numerous possible ways of balancing the potential conflicts or tensions, would be impossible to accurately anticipate, and provide for, in this Declaration. Secondly, and more importantly, there is ample scope for balancing the enjoyment of such potentially conflicting rights and freedoms under existing instruments on international human rights law, to which states, indigenous peoples and others may have recourse to, when so required.

The wording contained in the Subcommission draft of Article 45 goes in this direction by stating that no state, group or person should interpret this Declaration in a manner that would be contrary to the Charter of the United Nations.

However, a small number of delegations at this Working Group had difficulties with this formulation and wished to add further limitations. In an effort to reach consensus, and in order to account for these concerns, the delegations subscribing to this statement were flexible and accommodative enough to agree to some of the proposed changes to the Subcommission draft. Some of these delegations thereby agreed to the inclusion of language stating that the exercise of the rights and freedoms contained in this Declaration must meet international human rights law and international standards of good governance. However, the proposed inclusion of further limitations, namely, the “just requirements of morality, public order and the general welfare in a democratic society”, which have been reflected in the proposal of the chairperson of this Working Group’s (as contained in UN Doc E/CN.4/2005/WG.15/2 dated 15 September, 2005) have no place in this Declaration, because such requirements of “morality” etc. have historically been invoked to justify the perpetration of severe injustices against indigenous peoples, including genocide and ethnocide. They are sweeping in nature, and would severely undermine the exercise of indigenous peoples’ rights, and undo a most fundamental purpose of this declaration, namely, to protect and promote the rights of indigenous peoples.

Generic references to limitations upon the exercise of rights and freedoms are more appropriate, and more common, in national legal instruments, than in international law. Limitations of this nature refer generally to specific individual rights and freedoms, such as the freedom of expression, or freedom of assembly, or freedom of movement. Other references to such limitations are applicable in their particular contexts, and are not relevant to the situation of the rights of indigenous peoples in general.

Therefore, we believe that the best way to address this issue is to accept the proposal made by the Canadian delegation, with amendments to it by the American Indian Law Alliance (AILA), as presented on 1 February, 2005, (an English language copy of which is annexed to this statement). This proposal has been supported by a large number of governmental and indigenous delegations, whereas the proposals contained in the chairperson’s proposal (as contained in UN Doc E/CN.4/2005/WG.15/2 dated 15 September, 2005) are based upon the support of only a very few delegations participating at this Working Group.

On Article 45 bis

Given the broad scope of Article 45, as contained in the AILA proposal on Article 45, the concerns, if any, regarding potential conflicts or tensions between the rights of indigenous peoples and the interest of states, and rights of other third parties, have already been met, and we therefore see no need whatsoever of retaining the provisions of this proposed new article.

Articles 3 and 31

We reiterate the fundamental importance of the right of self determination, from which flows so many of our rights, including our collective rights. This right needs to be reflected in its true essence, as we believe it has, in the article 3 as reproduced in the chairpersons proposal. We cannot agree to any changes to this formulation. Furthermore, the essence of one of the corresponding articles on the right of self-determination, namely, that autonomy and self-determination, as contained in article 31, must also remain unqualified. Its placement as the first article of Part VII, is logical, and must be so retained. Any proposed reordering of the placement of the provisions this article, such as to place them in an article after article 3 would be nappropriate, confusing and limit the scope and extent of the right of self determination.

We hope that the strong views that we have expressed with regard to the provisions of articles 45, 45 bis, 3 and 31 will be accurately and appropriately reflected in the report of this working group on its 11th session.

Proposal Regarding Canada’s Consolidated Text

February 3, 2006

ARTICLE 45:

1. Nothing in this Declaration may be interpreted as implying for any State, people, group, or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations.

2. In the exercise of the rights enunciated in the present Declaration, respect for the human rights and fundamental freedoms of all persons shall be observed. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are in accordance with international human rights law and international standards of good governance.

3. The principles of this Declaration, and of justice, democracy, and respect for human rights, equality, non-discrimination, good faith, and good governance for all constitute essential elements for harmonizing the rights of indigenous peoples, individuals, States and other concerned parties.