Report on the Working Group on the UN Draft Declaration on the Rights of Indigenous Peoples Meeting 5-16th December 2005Claire Charters / 22 December 2005
Introduction
This report is written on behalf of the Aotearoa Indigenous Rights Trust (AIR Trust) for other interested Maori individuals and groups. It provides a brief summary of the United Nations (UN) negotiations on the Draft Declaration on the Rights of Indigenous Peoples (the Draft Declaration) from 5 - 16 December 2005.
Unfortunately, I was only able to attend from 13 - 16 December 2005. This summary, therefore, only comprehensively covers that period. However, based on briefings from other indigenous peoples' representatives present during the first week of the meeting, I have provided some information relating to the remainder of the meeting.
Background
This was the eleventh inter-sessional working group meeting to negotiate the Draft Declaration (the WGDD).
The Draft Declaration was drafted in the first instance in the Working Group on Indigenous Populations (WGIP), a United Nations forum focused on indigenous peoples, and with much input from indigenous peoples. It was accepted by the WGIP parent body, the UN Sub-Commission on the Promotion and Protection of Human Rights (the Sub-Commission), in 1994. The text was then forwarded to the UN Commission on Human Rights, which established the WGDD for 10 years to elaborate a draft declaration on the rights of indigenous peoples considering the Sub-Commission draft.
Numerous indigenous peoples the world-over participate in the negotiation of the Draft Declaration, together with states, in the WGDD.
The mandate of the WGDD was extended by the UN Commission on Human Rights in 2004. There is a sense of urgency to complete negotiations on the Draft Declaration lest the mandate of the WGDD not be renewed in years to come. There is a concern that states might not have the political will to authorise further meetings.
If and when the Draft Declaration is finalised (be it with the consensus of states and indigenous peoples or as a suggested text by the Chair), it will proceed to the UN Commission on Human Rights, a body made by of 53 States, for acceptance.
It is hoped that the Draft Declaration will ultimately be approved by the UN General Assembly, at which point it will become an international declaration on the rights of indigenous peoples.
The Significance of a Declaration on the Rights of Indigenous Peoples
A UN declaration on the rights of indigenous peoples will not be legally binding as a matter of international or domestic law, unless incorporated into domestic law.
Nonetheless, a UN declaration on the rights of indigenous peoples will provide a measure against which state action impacting on indigenous peoples can be assessed, such as the Foreshore and Seabed Act 2004. It will impose moral obligations. It is likely that a declaration on the rights of indigenous peoples would inform the jurisprudence of international human rights bodies, such as the Committee on the Elimination of Racial Discrimination, and domestic courts and tribunals when reviewing state action. New Zealand courts, and the Waitangi Tribunal, have referred to the Draft Declaration in their jurisprudence. For those reasons, it is important, in my view, that the Draft Declaration is strong.
There is also a suggestion that a UN declaration on the rights of indigenous peoples could form the basis of an international treaty, which, if ratified by states, would be legally binding on states as a matter of international law.
AIR Trust
AIR Trust was established as a vehicle to enable interested Maori individuals to attend and participate in international fora such as the WGDD. The "founders" of the AIR Trust include Tracey Whare, who was an indigenous fellow at the UN in 1998.
In the WGDD, AIR Trust has, when requested, represented a number of iwi and hapu. However, it has principally represented the views of a number Maori individuals. As AIR Trust does not have a broad mandate from Maori, it has been careful not to shift from the position of Maori representatives who had a broad mandate to represent Maori, abd walked out of the WGDD negotiations in the late 1990s to protest against proposed amendments to the Sub-Commission text of the Draft Declaration. Therefore, AIR Trust has always argued that there should be no change to the Sub-Commission text on the Draft Declaration, and has sought to defend that text.
The AIR Trust has never purported to represent Maori as a whole, nor iwi and hapu, unless asked to do so.
AIR Trust representatives have taken the view that, in the interests of being constructive, it will not oppose amendments to the Sub-Commission text of the Draft Declaration that have the support of the indigenous peoples' caucus involved in drafting the Draft Declaration, and which strengthen the Sub-Commission text.
The Controversial Issues
The most controversial articles are those relating to:
- self-determination;
- rights to land, territories and resources; and
- collective rights.
Structure of the December 2005 Negotiations
In short, the Chair focused the main "plenary" meetings on articles relating to self-determination and land rights, which are the most contentious.
Discussions in relation to the other articles took place in more informal meetings chaired by Norwegian governmental representatives, which had the objective of finding consensus on the relatively less controversial issues.
Provisional Agreement
As mentioned above, the Chair requested all states and indigenous peoples to consider which articles they could accept and in what form. States and indigenous peoples worked independently on their respective lists, and then came together to provide a group of "consensus" articles. Working from the text provided by the Chair earlier in 2005 amending the Sub-Commissions text (see http://daccessdds.un.org/doc/UNDOC/GEN/G05/133/60/PDF/G0513360.pdf?OpenElement), states and indigenous peoples were able to provisionally agree to the following, albeit with some further amendment in some cases:
Preambular paragraphs: 2, 3, 4, 7, 8, 9, 11, 17, 18, 19.
Articles: 4, 6, 9, 14, 16, 17, 19, 22, 23, 24, 37, 41, 44.
In addition, it was thought that states and indigenous peoples were close to agreement on the following:
Preambular paragraph: 16.
Articles: 13, 20 and 38.
New Zealand, along with other states, pointed out that nothing is agreed until everything is agreed. This basically means that New Zealand only provisionally agrees to these articles. Their agreement to the above-mentioned articles is subject to their acceptance of other articles, such as those relation to self-determination.
The provisional agreement to so many articles and preambular paragraphs was groundbreaking. There has never been such progress in one WGDD meeting.
Self-Determination
Self-determination has historically been the most contentious issue in WGDD meetings. Indigenous peoples have argued for the broadest right on the basis that all other indigenous peoples' rights flow from self-determination. States have consistently sought to limit it, although some states, especially Denmark and some Latin American states have expressed their ability to accept strong self-determination articles.
The self-determination issue is influenced by a large body of international law, which, in the interests of brevity, I have not summarised here. However, if interested, I refer you to S J Anaya Indigenous Peoples in International Law (2 ed, Oxford University Press, Oxford, 2004). The AIR Trust response to the New Zealand, Australian and United States proposals on self-determination, attached, also contains some reference to international law.
The "cluster" of self-determination preambular paragraphs and articles include:
Preambular paragraphs 12, 14, 15, 15 bis, 18, 18 bis.
Articles: 3, 31, 32, 33, 34, 35, 45 and 45 bis.
The central article is article 3, which in the Sub-Commission text states:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Most of the debate on self-determination in recent times has centred on states' concerns that indigenous peoples will have the right to secede by virtue of article 3. Hence, states have attempted to insert amendments into the Draft Declaration that make explicit reference to the retention of states' territorial integrity in the Draft Declaration. Indigenous peoples have argued that an explicit reference to territorial integrity would mean that an indigenous peoples' right to self-determination is limited, which would be discriminatory. Other binding international legal instruments guarantee peoples' right to self-determination without explicitly referring to states' territorial integrity.
Nonetheless, prior to the December 2005 meeting, there appeared to be growing consensus to leave article 3 as is, and to either:
- indirectly incorporate a reference to territorial integrity by making it clear that the Declaration would be subject to existing international law (which does protect states' territorial integrity); and/or
- make explicit reference to territorial integrity in another article, although indigenous peoples had expressed their reluctance to accept that proposal.From my perspective, it appeared that there was consensus in principle on self-determination prior to December 2005. States and indigenous peoples agreed indigenous peoples have a right to self-determination and that, except in clearly delineated circumstances, indigenous peoples did not have a right to secede under international law.
The New Zealand, Australian and United States proposal to amend article 3 in this December 2005 meeting upset the growing consensus between indigenous peoples and states in part because it sought amendment of article 3 and, in addition, to confine self-determination to "self-management". Such language had not been suggested for a long time. See the attached documents containing the New Zealand, Australian and United States proposed amendments, their explanatory note and the AIR Trust's response to both the proposal and explanatory note.
Fortunately, many indigenous peoples groups, coupled with other states, spoke out against the New Zealand, Australian and United States proposal on self-determination. It also appears the New Zealand, Australian and United States proposed amendments have largely been ignored by the Chair of the WGDD. Their proposal remains dangerous, however, lest it prevent consensus at the next WGDD.
Lands, Territories and Resources
The land, territories and resources preambular paragraphs and articles had not, in my view, reached the same degree of acceptance from states and indigenous peoples as self-determination had prior to the New Zealand, Australian and United States December 2005 proposal on self-determination.
In short, some of the more contentious issues include:
- states' duties in relation to lands traditionally owned by indigenous peoples; and
- states' duties to provide restitution or, alternatively, compensation for the taking of indigenous peoples lands.The lands, resources and territories preambular paragraphs and articles include:
Preambular paragraphs: 6, 8 and 10.
Articles: 10, 21, 25, 26, 26 bis, 27, 28, 28 bis, 29 and 30.
New Zealand's position on lands, territories and resources is particularly conservative.
AIR Trust made a general intervention to the effect that amendments to the Draft Declaration on lands and resources from a state that is currently in breach of its international obligations to protect indigenous peoples' lands should be treated with caution. New Zealand's proposals are based, I submitted, on domestic policy that falls foul of existing international legal standards.
New Zealand, supported by some other states, sought the deletion of the reference to indigenous peoples "material" relationship with their lands in article 25.
Article 26 of the Sub-Commission text of the Draft Declaration states:
Indigenous peoples have the right to own, develop, control and use the lands and resources, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora, and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions or customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation of or encroachment upon these rights.
Obviously, this right is expressed broadly, including traditionally owned lands, which led to states watering down the article. The latest Chair's text states:
States shall give full legal recognition and protection to the lands, territories and resources that are possessed by indigenous peoples by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. Such recognition shall be in accordance with the customs, traditions and land tenure systems of the indigenous peoples concerned. Indigenous peoples have the right to own, use, develop and control such lands, territories and resources.
New Zealand, in relation to the latest Chair's text:
- objected to the word "possess", presumably on the grounds that it would capture too many indigenous peoples' lands, including lands traditionally owned by indigenous peoples;
- proposed the deletion of "full" and replacement with "appropriate" legal recognition, which would enable states to give less than full recognition of indigenous peoples' lands, territories and resources;
- maintained that "shall be in accordance with customs, traditions and land tenure systems" was too strong as customs should not be the sole determinate in a process of considering legal recognition; and
- suggested that states must take into account other parties' land rights, and recommended amendments to that effect.Article 27 of the Chair's amended text of the Draft Declaration as of April 2005 states:
Indigenous peoples have the right to redress, by means of restitution or compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and informed consent.
During negotiations, the following additional sentence was proposed;
Compensation shall take the form of lands, territories and resources equal in quality, size and legal status or, when this is not possible, of monetary compensation.
In response New Zealand:
- stated that article 27 is too prescriptive such that it would prevent alternative means of redress agreeable to indigenous peoples (which could be seen as a move to avoid obligations to provide restitution or compensation);
- suggested amending the text such that indigenous peoples have the right to pursue claims for redress […] rather than having the right to redress;
- suggested the addition of "fair and equitable" before restitution, thus watering down any obligation to provide restitution;
- proposed deleting the suggested second paragraph relating to compensation.Indigenous peoples rejected the addition of "pursue claims" on the grounds that it would create a legal nonsense, as everybody has the right to pursue claims. The proposal to delete the second paragraph in relation to compensation was similarly rejected by indigenous peoples. However, there was a proposal from indigenous peoples' caucus members, which AIR Trust supported, to add "unless otherwise freely agreed upon by the peoples concerned" before compensation to enable states and indigenous peoples to agree to alternative types of redress.
Treaties and Agreements between Indigenous Peoples and States
Naturally, the preambular paragraphs and articles dealing with treaties between indigenous peoples and states are of particular importance for Maori in the light of the Treaty of Waitangi.
In my view, the Sub-Commission text has been watered down, but states and indigenous peoples appear to be close to consensus in agreeing to the following wording (although other wording has been proposed) with the exception of preambular paragraph 6. I have inserted the Sub-Commission text wording below the new "consensus" version here to highlight how the Draft Declaration has changed.
PP 6:
Recognising the urgent need to respect and promote the inherent rights of Indigenous Peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.
Further recognising the urgent need to respect and promote the rights of Indigenous Peoples affirmed in treaties, agreements and other constructive arrangements with States.
PP 6 - Original Sub-Commission Text:
Recognising the urgent need to respect and promote the inherent rights and characteristics of indigenous peoples, especially their rights to their lands, territories and resources, which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies.
Note: the United Kingdom has rejected the proposition that indigenous peoples have any inherent rights as collectives on the grounds that it maintains that only individual rights can be inherent.
PP 13:
Considering that the rights affirmed in treaties, agreements and constructive arrangements between states and Indigenous Peoples are matters, in some situations, of international concern, interest, responsibility and character.
Also considering that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between Indigenous Peoples and States.
PP 13 - Original Sub-Commission Text:
Considering that treaties, agreements and other arrangements between States and indigenous peoples are properly matters of international concern and responsibility.
Article 36:
Indigenous peoples have the right to recognition, observance and enforcement of Treaties, Agreements and Other Constructive Arrangements concluded with States or their successors and to have States honour and respect such Treaties, Agreements and other Constructive Arrangements.
Nothing in this Declaration may be interpreted as to diminish or eliminate the rights of Indigenous Peoples contained in Treaties, Agreements and Constructive Arrangements.
Article 36 - Original Sub-Commission Text:
Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or with their successors, according to their original spirit and intent, and to have States honour and respect such treaties, agreements and other constructive arrangements. Conflicts and disputes which cannot otherwise be settled should be submitted to competent international bodies agreed to by all parties concerned.
Collective Rights
The United Kingdom has led the objections to articles dealing with collective rights. In particular, the United Kingdom does not want the collective rights articles to override or "trump" individual human rights.
In my view, the United Kingdom's concerns are misplaced for the simple reason that individual human rights will still "trump" collective rights as a matter of international law, no matter how absolutely collective rights are expressed in the Declaration. Individual human rights contained in international human rights treaties are binding international law, whereas indigenous peoples' collective rights will be in a non-binding declaration, which is of course subject to (even subservient) international human rights treaties.
In the December 2005 meeting, some attention was focussed on a proposal by the United Kingdom and Guatemala to add the following preambular paragraph (pp 18 bis):
Recognising and reaffirming that indigenous individuals are entitled without discrimination to all human rights recognised in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well being and integral development as peoples.
Of course, this clause distinguishes between individual rights and collective rights and implies that collective rights are not international legal norms.
The United Kingdom has said it could accept a number of other articles if pp 18 bis is added. Discussion will no doubt continue on this proposal by the United Kingdom and Guatemala.
New Zealand's Approach to the Draft Declaration
In my opinion, New Zealand's proposals on lands, territories and resources and self-determination place it as one of the most, if not thee most, conservative state(s) on the Draft Declaration. It appears to have become more conservative over the last year, and I cannot help but think that this must be tied to the foreshore and seabed issue.
The New Zealand government has been extremely reluctant to consult with Maori about amendments it seeks to the Draft Declaration. AIR Trust has attempted to put pressure on the Government to consult with Maori on numerous occasions.
Some New Zealand officials have been personally hostile when approached by Maori individuals to discuss New Zealand's proposed amendments to the Draft Declaration, which has not been helpful or constructive.
Need for Greater Maori Involvement
Given that New Zealand is now one of the most conservative states in the WGDD negotiations, my view is that Maori should support the indigenous peoples' caucus (not to mention indigenous peoples world-wide) in attempting to prevent New Zealand from watering down the Draft Declaration to an unacceptable level.
Claire Charters
December 2005