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Developing a Modern International Law on the Rights of Indigenous Peoples
Indigenous issues began to be considered at the United Nations in the context of racial discrimination. A "Study on the Problem of Discrimination Against Indigenous Populations" was authorized in 1971. An international concern with Indigenous peoples developed in the 1960s and '70s, with the formation of non-indigenous support organizations and international organizations of Indigenous peoples. State interest developed, particularly on the part of Norway, the Netherlands and other like-minded states. In 1982 the United Nations Working Group on Indigenous Populations was established, as a pre-sessional working group of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, an expert body. Each year the Working Group conducts a review of developments, during which Indigenous peoples from various parts of the world air their concerns. The Working Group has no power to investigate or adjudicate on allegations made by Indigenous representatives. It does not question governments or comment on specific cases.
In 1985 the Working Group began drafting a declaration on the rights of Indigenous peoples, which it completed in 1993. The United Nations Human Rights Commission began consideration of the draft declaration at its regular session in February-March 1995. The Commission, a political body, is expected to establish a new working group to consider the document. After consideration by the Human Rights Commission, the draft declaration should be approved, without further revision, by the Economic and Social Council and the General Assembly.
The Working Group on Indigenous Populations has been the most open forum in the United Nations system, allowing any individual Indigenous person or representative of an Indigenous group to speak. Indigenous participation has also been facilitated by two funds and by favourable decisions of the Economic and Social Council on the accreditation of Indigenous non-governmental organizations (NGOs). At present twelve indigenous NGOs have 'consultative status' at the United Nations.
The two senior members of the Working Group are Professor Erica-Irene Daes of Greece and Professor Miguel Alfonso Martinez of Cuba. Madam Daes has visited Canada a number of times and done investigative trips to New Zealand and Australia. She continues to work on a study on indigenous heritage, formulating standards for the protection of indigenous intellectual property. Professor Alfonso Martinez is responsible for a study on treaties between Indigenous peoples and states.
There have been discussions over the last few years about the future of the working group and also about the idea of establishing a new permanent forum for Indigenous peoples within the United Nations system. No decisions have been taken on these questions. The Working Group continues to meet annually, immediately before the regular August meetings of its parent body, the Sub-Commission on Prevention of Discrimination and Protection of Minorities.
The most contentious parts of the draft Declaration on the Rights of Indigenous Peoples concern the international law idea of the 'self-determination of peoples'. Indigenous representatives have insisted on an unconditional application of the idea. Most observer government delegations have voiced opposition or concern about the use of the terms 'peoples' or 'self-determination'. In 1993 the Working Group decided on wording that stated:
Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
The Human Rights Commission and the United Nations World Conference on Human Rights, held in 1993, both rejected the term 'peoples', using instead either 'people' or 'populations'. Canada has opposed the use of 'peoples' and 'self-determination', though it proposed somewhat ambiguous wording in the Working Group in 1993 that used the terms. Brazil has expressed opposition to the terms. Denmark/Greenland has stated its support for the wording of the 1993 draft. Some indigenous representatives, while satisfied with the wording quoted above, are concerned that other provisions in the draft might be interpreted to limit its apparently unconditional language. As a result, both indigenous representatives and government delegations are divided over this aspect of the present draft.
Other provisions of the draft deal with territorial rights, self-government, treaties and intellectual property.
A Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations was authorized in 1989. The special rapporteur for the study, Professor Miguel Alfonso Martinez, completed a first progress report in 1992. It depicted European colonialism as racist, but suggested that the colonial powers regarded treaties with Indigenous peoples as coming under international law. The progress report outlined an extensive research agenda. A second progress report is expected in 1995 and a final report in 1996.
The International Year of the World's Indigenous People, held in 1993, was highly disappointing. An International Decade was launched in December 1994.
Concerns related to Indigenous peoples have been considered by other international bodies:
the Centre for Transnational Corporations of the United Nations (which has now been ended),
the International Labour Organisation,
the Human Rights Committee (which has decided certain individual communications from Indigenous people in Canada, under the provisions of the International Covenant on Civil and Political Rights and its Optional Protocol), and
the World Bank and other international financial institutions.
Increasingly, indigenous issues are considered in all relevant international intergovernmental organizations.
Developing a Modern International Law on the Rights of Indigenous Peoples
Colonialism represented a massive denial of the rights of Indigenous peoples in all parts of the world. Yet within colonial practice and early international law there were elements giving limited recognition to indigenous rights. As the colonial powers and settler governments gained strength, states ceased to regard those elements of early colonial practice as legally binding. But, where they existed, they continued to be invoked by Indigenous peoples and their supporters in their campaigns for reform. In the post-war period in Canada, the United States, Australia and New Zealand, domestic legal systems moved to the recognition of a rights framework for Indigenous peoples, invoking Aboriginal and treaty rights. Modern domestic law and modern international law are based on this revision of colonialism, which has occurred in an period when human rights has become the common vocabulary of legitimacy for governmental institutions.
Concern about the treatment of Indigenous peoples is apparent in documents associated with British colonial policy. The Royal Proclamation of 1763 refers to the tribes "with whom we are connected, and who live under our protection...". The campaigns of the Aborigines Protection Society in London in the first half of the nineteenth century led to the establishment of a Select Committee of the House of Commons on Aborigines, which reported in 1837. Centralized authority over Indigenous peoples was promoted as a policy to protect Indigenous peoples from local settler interests. 'Protection' is the historical basis for centralized jurisdiction over "Indians, and Lands Reserved for the Indians" in the Canadian constitution of 1867.1
The decisions of Chief Justice John Marshall of the United States Supreme Court, in a famous trilogy of cases in the early nineteenth century, described a framework of rules or practices he attributed to the European colonial powers. The framework justified United States suzerainty, but meant that the Indian tribes retained both a political status and territorial rights.2 Much later, Felix Cohen claimed that U.S. Indian law could be linked back to the recognition of tribal rights in the sixteenth-century writings of Franciscus de Vittoria.3
The last great period of European colonial expansion occurred in the latter years of the nineteenth century. In the context of the scramble for Africa, there was an effort to establish international responsibility for the tribes in the Congo basin. That effort was short-lived, and Belgium took over the Congo, now Zaire, as a colony and proceeded to establish one of the worst records of colonial administration.4
After the First World War, some former colonies became 'mandates' under the Covenant of the League of Nations. The Covenant said that "the well-being and development of such peoples form a sacred trust of civilization...". The "tutelage" of such peoples was "entrusted to advanced nations...".5 The scheme was continued, using different language, in the Charter of the United Nations.
The League of Nations became involved in the international controversy over the treatment of tribal populations in the independent African country of Liberia, ruled by African-Americans who had returned from the United States. The Liberian involvement of the League was unique and is not cited as a precedent for modern international activities.6
The Iroquois patriot Deskaheh traveled from Canada to Geneva in the 1920s in an attempt to get a hearing before the League of Nations. While Deskaheh got support from some state representatives, his pleas were never considered by any organ of the League. The Canadian reply to Deskaheh's petition was published in the official journal of the League.7
The International Labour Organisation, founded at the time of the League of Nations, became involved with Indigenous populations as exploited labour pools, beginning in the 1920s. More extensive ILO involvement occurred after the Second World War.
The United Nations Charter of 1945 spoke of promoting human rights and fundamental freedoms. Previous human rights concerns at the international level had been limited to (a) humanitarian law, initiated by the Red Cross in 1864, (b) the elimination of slavery, (c) some minimum standards for the treatment of colonized peoples, and (d) the protection of certain minorities in Europe that had specific protections under individual peace treaties ending the First World War.8 The decision to create a new international law of human rights was a reaction to the atrocities of the Second World War. One of the first new human rights instruments was the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
The war disrupted patterns of colonial control. The independence of India and Indonesia were early consequences, heralding the general independence of colonial territories in the following decades.
The new concern with human rights arose at both the international and the national level. The war had brought women into the industrial work force in unprecedented numbers. The United States integrated its military during the war, the first major attack on racial segregation in that country. The war experience also prompted the development of a modern homosexual political consciousness.9
For Aboriginal peoples in Canada, the war had a profound impact. Indian people had the highest voluntary enlistment rate of any grouping. In Canada they had second-class citizenship. Status Indians could not vote in federal elections or in most provincial elections. They had no legal access to liquor. They were geographically isolated. As soldiers in Europe, life was very different for them. Europeans had an old romantic interest in North American Indians, and in Europe Canadian Indians were equals, able to join their comrades in the pubs.
The post-war leadership of Indian peoples in both Canada and the United States was dominated by Indian veterans. In the 1970s, Vice-Chief Omar Peters of the National Indian Brotherhood (now the Assembly of First Nations) would still routinely include references in his speeches to the service record of Indians in the Second World War. Status Indian veterans and their families got the federal vote before other status Indians. The first post-war prime minister to have a personal interest in Indian issues, John Diefenbaker, had developed a friendship with an Indian serviceman during the war. The serviceman later campaigned for Diefenbaker in Saskatchewan. The vote of the Indian veterans and their families may have been decisive in Diefenbaker's first election to the House of Commons.
Diefenbaker granted the vote to all status Indians in 1960, assuring them that the vote would have no negative effects on treaty rights. Diefenbaker saw the granting of the vote as meeting real or potential international criticism. International criticism of Canada's human rights record has virtually always been criticism of its treatment of Indigenous peoples. It is said that Hitler attacked Canada on that basis. South Africa responded to Canadian criticisms of apartheid by pointing to our Aboriginal policies. Diefenbaker, in his memoirs, recounts responding to South African criticism at the Commonwealth heads of government meeting in which South Africa was expelled from the Commonwealth. An Iroquois delegation travelled to San Francisco seeking access to the conference that founded the United Nations.10 They were given no hearing. A delegation representing the North American Indian Brotherhood, an organization based in British Columbia, went to New York in the 1950s with a petition. They met John Humphry, the Canadian who headed the Human Rights Division. He told them to deal with Ottawa.
An examination of John Humphry's personal papers at the law library of McGill University reveals that Indian petitions were sent every year from various parts of the Americas to the United Nations.11
The United Nations Charter spoke of "human rights and fundamental freedoms...". The new world organization proceeded with the drafting of what came to be called the International Bill of Rights, composed of three instruments the Universal Declaration of Human Rights of 1948 and the two basic human rights treaties of 1966, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These instruments generally avoided issues of minority rights. The only provision dealing directly with minorities was article 27 of the International Covenant on Civil and Political Rights, which dealt of the rights of individuals who were members of religious, linguistic or cultural minorities, not in terms of the rights of minorities as collectivities.12 A weak declaration on the rights of minorities was approved by the United Nations General Assembly in 1992, after two decades of discussion.13 The declaration continued the tradition of the International Covenant on Civil and Political Rights in according no rights to minorities as collectivities.14
The International Labour Organisation expanded its concern with Indigenous peoples in the 1950s, assuming responsibility for the Andean Indian Program on behalf of itself, the World Health Organization and the United Nations. This work led the ILO to publish a comparative study, "Indigenous Peoples", and to draft the 1957 Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries. The convention reflected the policies of assimilation that were common in the period. Canada participated in the drafting process but never signed the convention. It seems to have prompted no discussion in the country.
The second great innovation in post-war international law, along with the creation of an international law of human rights, was the development of a law on decolonization, codified in a 1960 declaration of the United Nations General Assembly.15 Gordon Bennett records the debates at the United Nations that made it clear that 'self-determination' as decolonization did not apply to internal collectivities. The so-called 'blue water' or 'salt water' theory limited decolonization to overseas territories. It applied to India, but not to the Iroquois.16 Decolonization applied to a list of territories, and only a very few small territories continue on the list places like Gibraltar and Bermuda.
Indigenous issues could have been considered at the United Nations under one or more of the following headings:
racial discrimination
decolonization or self-determination
cultural minorities
individual human rights
Other themes, such as labour, economic development, the activities of transnational corporations, cultural rights, the environment, health or the status of treaties with Indigenous peoples were limited bases for international concern. The most logical themes were minority rights or decolonization/self-determination. But both areas were politically sensitive and were handled restrictively at the United Nations.
A strategic decision was taken in the mid-1960s by Augusto Willemsen Diaz, a lawyer from Guatemala and a member of the staff of the United Nations Human Rights Centre in Geneva, to route a concern with Indigenous peoples through the work under way on racial discrimination. As a result of his work, a 1970 interim report of a study on racial discrimination recommended a separate study on indigenous populations. While Willemsen Diaz saw 'discrimination' as an incomplete description of the issues involved, it was possible for Indigenous peoples to get on the agenda of the United Nations through this door.17
In 1971 a Study on the Problem of Discrimination Against Indigenous Populations was authorized. Jose R. Martinez Cobo, a diplomat from Ecuador and a member of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, was named the special rapporteur, the person charged with the conduct of the study. Inadequate staffing and funding at the United Nations Human Rights Centre meant that the work fell almost exclusively to Augusto Willemsen Diaz. He was constantly called on to do other work as well. Martinez Cobo took a couple of trips as part of the work but did none of the drafting. The study was completed in 1983.18
In this period a new international concern with Indigenous peoples was developing. The pioneer support organizations, the International Work Group for Indigenous Affairs (IWGIA), based in Copenhagen, and Survival International, based in London, were formed at the end of the 1960s around concerns about ethnocide and genocide in South America. The Program to Combat Racism of the World Council of Churches sponsored a symposium on South America in 1971. The meeting produced a ground-breaking decolonizing statement by a group of prominent South American anthropologists, the Declaration of Barbados.19 The pioneering international indigenous organizations, the World Council of Indigenous Peoples (WCIP), based in Canada, and the International Indian Treaty Council (IITC), based in the United States, were both formed in 1975.20 The WCIP held conferences in Sweden in 1977 and Australia in 1981, both times with financial support from the host country. The conference in Australia discussed a draft treaty on indigenous rights. The IITC began lobbying at the United Nations. It was the primary indigenous organization involved in the two conferences on Indigenous peoples that were held under NGO auspices in United Nations facilities in Geneva in 1977 and 1981.21 The 1977 conference produced a Declaration of Principles for the Defence of the Indigenous Nations and Peoples of the Western Hemisphere. Norway included a Sami leader in its delegation to the United Nations World Conference on Racism, held in Geneva in 1978. The final conference statement devoted a section to indigenous rights. A 1981 United Nations regional seminar in Nicaragua, held as part of the Decade to Combat Racism and Racial Discrimination, focused specifically on Indigenous peoples. The Fourth Russell Tribunal, held in Rotterdam in 1980, heard a series of specific cases of the denial of rights of Indian peoples in the Americas.22 The Federation of Saskatchewan Indians organized the World Assembly of First Nations in Regina in 1982, drawing indigenous representatives from most parts of the Americas.
Certain states promoted the concern with Indigenous peoples at the United Nations. Through links between Helge Kleivan of the International Work Group for Indigenous Affairs and Thorvald Stoltenberg, then foreign minister of Norway, Norway began identifying Indigenous peoples in its foreign aid policies, including annual grants to both IWGIA and WCIP. Norway urged the other Nordic states to support indigenous issues internationally. The Netherlands became a strong supporter. The Dutch Parliament passed a resolution on indigenous rights after the 1980 Russell Tribunal hearings in Rotterdam.
With leadership from Theo Van Boven, the Dutch head of the United Nations Human Rights Centre, and support from certain northern European states, the decision was taken by the United Nations in 1982 to establish a Working Group on Indigenous Populations as a pre-sessional working group of the Sub-Commission on Prevention of Discrimination and Protection of Minorities.23 As a working group of the Sub-Commission it would draw its members from the Sub-Commission. As a pre-sessional group it would meet immediately before the annual four-week August meetings of the Sub-Commission. The chart on the next page illustrates the positioning of these bodies within the structure of the United Nations.
By the Charter of the United Nations the functions of the General Assembly, the Economic and Social Council and the Human Rights Commission are very limited. These bodies are to discuss human rights issues, conduct studies, and draft the texts of declarations and treaties dealing with human rights. They have no adjudicatory or legislative functions, as those terms would be understood in domestic legal systems. International law relies upon diplomacy, negotiation, agreement/consensus and voluntary state compliance. The use of sanctions or military force is rare. While the legal authority of United Nations bodies is limited, the moral authority of the United Nations on human rights issues is great. The work of the United Nations in drafting human rights standards is important as human rights have become more of an international concern in foreign relations, foreign aid, the policies of international funding agencies, and even, in the context of the breakup of the Soviet Union and Yugoslavia, in the recognition of states. Human rights issues have become internationalized to an extent that could not have been predicted even twenty years ago. Thus we see the Parti Québécois recognizing certain rights of the English-language minority in Quebec, explaining that it must protect minority rights in order to gain international recognition for an independent Quebec.24
The General Assembly
(a political body composed of representatives of the 185 states that are members of the United Nations)25
|Ecosoc
(the Economic and Social Council, a political body with 54 representatives of states, charged under the Charter of the United Nations with responsibility for human rights, among other matters)
|The Human Rights Commission
(a political body with 53 representatives of states, concerned solely with human rights]
The Sub-Commission on Prevention of Discrimination and Protection of Minorities
(an 'expert' body composed of 26 individuals nominated by states but who are to serve as independent experts in their 'individual capacity' that is, they are not to take political direction from the governments of their states)
The Working Group on Indigenous Populations
(composed of five members of the Sub-Commission representing the five regions recognized by the United Nations for organizational purposes)
The Working Group on Indigenous Populations began meeting in 1982. It has met annually since that time, with the exception of 1986 when the annual session of the Sub-Commission was cancelled for financial reasons, though an unofficial session was held that year. The Working Group began drafting a declaration on indigenous rights in 1985, a task it completed in 1993. Consideration of the draft has now passed to the Human Rights Commission. From there it will go to the Economic and Social Council and the General Assembly.
Since 1982, three United Nations seminars have been held on relations between Indigenous peoples and states, on self-government, and on sustainable development. A fourth seminar, on land claims, has been expected.
Indigenous people were a clearly visible presence at the United Nations Conference on Environment and Development in Rio de Janeiro in 1992. Indigenous issues feature in the text of the final documents of the conference.26 The United Nations Commission on Sustainable Development, which met for the first time in July 1993, recommended that the United Nations organize formal annual consultations with Indigenous peoples. Indigenous people were active at the United Nations World Conference on Human Rights in Vienna in 1993. Again they featured in the final document of the conference.27
Indigenous peoples are now clearly on the agenda of the various international intergovernmental agencies. They are seen as a special case, not as an example of a broader or more general category, such as cultural minorities or territorial minorities. Their uniqueness has facilitated support for indigenous rights issues. Benedict Kingsbury has noted this aspect of international developments:
The progress that has been made by "indigenous peoples" in international fora has been aided by the political perception that this category of claimants is limited and in some respects unique, and that such claims can properly and safely be treated as a special case. Although the imprecision of the category and the expanding array of groups involved in the "indigenous peoples movement" could eventually threaten this perception and provoke more sustained demands for precision, such a transformation has not yet occurred.28
This treatment of indigenous issues as separate from consideration of the rights of other minorities is consistent with state practice in Canada and other western states. The only traditions that grouped indigenous minorities with other minorities were the nationalities policies of the Soviet Union and China. The Russian Federation has moved away from this linkage. China has not, a fact that separates Chinese policies from the international debate on Indigenous peoples.
Indigenous issues were able to reach the United Nations human rights agenda because of leadership from Norway, the Netherlands and the Nordic states and support from a loose like-minded group that included Canada. In the period when the Working Group was established there was support from three of the five regions recognized by the United Nations and a lack of opposition from the other two regions. The five regions are Western Europe and Others (including Canada, the United States, Australia and New Zealand), Eastern Europe, Latin America, Africa, and Asia. Let us look at these regions.
Western Europe has always been the major supporter of indigenous issues at the United Nations. The 'others' the non-European states in the WEO region all have Indigenous peoples. They supported or did not oppose the initiatives on Indigenous peoples that led to the establishment of the Working Group. The 1970s and '80s were periods of domestic reforms on indigenous policy in those states, making them open to international consideration of indigenous issues.
The United States did not take the Working Group very seriously, spending its political energies elsewhere at the United Nations. In 1993 the U.S. representative gave a presentation indicating a higher degree of U.S. interest in the process, apparently reflecting a greater concern with human rights issues in the new administration of President Clinton.29
Canada has taken the Working Group very seriously and has often had the largest observer government delegation and the largest delegation of indigenous representatives. Members of the Canadian government observer delegation have been drawn from Foreign Affairs (both Ottawa and Geneva), Indian Affairs, and the Federal-Provincial Relations Office. It is common for the Canadian ambassador to the United Nations in Geneva to attend one session of the Working Group and make the major Canadian government statement. In 1994 Indian Affairs minister Ron Irwin attended some sessions but did not speak.
Canada was seen as playing a leading role in the Working Group in its early years. More recently, the Canadian government delegation has been concerned with moderating or limiting the initiatives on Indigenous peoples at the United Nations. Canadian representatives say they are trying to develop positions that can be accepted by the various states with interests in the area. Some degree of consensus is essential for movement on indigenous issues.
Australia has also taken the Working Group very seriously and has had the highest-level delegations of any state. In recent years the minister of Aboriginal Affairs has regularly attended and spoken at the annual sessions of the Working Group. A large Aboriginal delegation attends, co-ordinated and funded by ATSIC, the Aboriginal and Torres Strait Islander Commission.30
Support from Eastern Europe was originally very political. Indigenous peoples were a useful human rights issue to criticize the United States and its allies in the western hemisphere. The former Soviet Union did not recognize groups like the Sami and Inuit in the Soviet north as 'indigenous'. They argued that the term 'indigenous' had no meaning when the majority national population was indigenous as well.
Even before the end of the cold war and the breakup of the Soviet Union, contact began between Soviet northern people and their counterparts in the non-Soviet Arctic. The term 'indigenous' started to appear in government statements. Since 1992 representatives of northern peoples from Russia have regularly attended the Working Group, apparently with state support. While Eastern European support for indigenous issues is stronger (and less political), the relative power of the Eastern European states within the United Nations has lessened dramatically.
As in the WEO region, support from Latin America for the establishment of the Working Group appeared to result from a general pattern of domestic reforms on indigenous policy in the period. Bitter fights over rights issues in Guatemala and Nicaragua became regular features of the early sessions of the Working Group. Latin American support became more guarded as the work on drafting a declaration on indigenous rights proceeded. Strong concerns about self-determination language were voiced by representatives of Brazil in 1993 and 1994.
When questionnaires were sent out by the Human Rights Centre in the early 1970s to gather information on Indigenous peoples, African states either did not reply or regarded the category as inapplicable to them. The Martinez Cobo report recommended an additional study on the applicability of the category to Africa, but that recommendation has not been acted on or even pressed.
Indigenous or tribal people from Africa now attend the annual sessions of the Working Group. In 1992 there were Tuareg from North Africa and tribals from Nigeria and Rwanda. In 1993 there were two groups from Kenya, Nubians from Sudan, Tuareg from North Africa, and a white Afrikaans group from Namibia (claiming to be indigenous on the basis of 125 years of existence). In 1994 Maasi were represented, and a Maasi is now on the board of the United Nations Voluntary Fund, which covers the expenses of certain representatives attending Working Group sessions.
African government delegations have not yet played a significant role in the Working Group.
In 1983 a representative of India at Geneva was angered when the first chair of the Working Group, Asbjorn Eide of Norway, appeared to sympathize with an accusation that a representative of the Bonded Liberation Front had been threatened by the ambassador of India. The representative worked to ensure that Eide was not re-elected to the Sub-Commission in 1984. Four of the five members of the Working Group were defeated in that election. The Working Group emerged stronger under the chairmanship of Madam Erica-Irene Daes, but anxious to avoid any repetition of the 1984 campaign. The incident now seems anomalous and largely the personal concern of an individual.
Certain Asians living in exile in Europe have regularly attended the Working Group (South Moluccans, West Irians, Timorese, tribals from the Philippines, Jumma from Bangladesh). Representation from Asia itself has broadened gradually. In 1994 there were indigenous or tribal representatives from Bangladesh, Burma/Myanmar, India, Indonesia, Japan, Laos, the Philippines and Taiwan. The tribal delegation from India was much larger than in previous years, reflecting organizational developments in that country.31
Asian government representatives, with the exception of Japan and the Philippines, contest the statements of indigenous or tribal representatives but do not show great concern with the work of the Working Group. Most Asian governments appear to believe that the term 'indigenous' does not apply in their region. Representatives of India have asked for a definition of indigenous, one that would make it clear that the term has no applicability to India. In the case of Japan, both Ainu and government statements are polite and non-confrontational. Only the Philippines has accepted the term as applying to groups within the country.32
A certain political balance has continued since the establishment of the Working Group. Support comes from the WEO region, Latin America and Eastern Europe. Africa continues to be supportive, but not engaged. Certain states in Asia are targeted in the annual sessions of the Working Group, but since 1983 no Asian state has attempted to undermine the Working Group as such.
There are five members of the Working Group, representing the five regions recognized by the United Nations. The five are drawn from the membership of the Sub-Commission on Prevention of Discrimination and Protection of Minorities. Technically they are chosen by the chair of the Sub-Commission, but conventional understandings of process influence the choices. Incumbents have an unofficial right to continue as members. When India organized opposition to the first chair, Asbjorn Eide of Norway, it did so by organizing a group of states to vote against his re-election to the Sub-Commission, not by trying to influence the Sub-Commission in the selection of members of the Working Group.
The two senior members of the Working Group, who have been members since 1984, are the chair, Erica-Irene Daes of Greece, and Miguel Alfonso Martinez of Cuba.
Madam Daes is the senior member of the Sub-Commission from the WEO region. She is a professor of international law and a forceful, independent woman who has taken on the indigenous cause with some passion. Madame Daes has visited Canada at least five times. She attended one session of the first ministers' conferences on Aboriginal constitutional matters as a seated observer. She spoke to the press at the end of the conference, criticizing governments for failing to agree on a constitutional amendment on self-government. Officials in the department of External Affairs were highly annoyed by her presence and her public criticisms, but no public comments were ever made to that effect. She has been invited to Canada two or three times by the Grand Council of the Crees (Quebec). She attended a parallel conference at the time of the Commonwealth heads of government meeting held in Vancouver. The conference was organized by Treaty 6; the linkage was through Sharon Venne, a Cree lawyer who has attended most of the Working Group sessions representing Treaty 6. Madam Daes also attended the First World Indigenous Youth Conference in Quebec in July 1992.
Madam Daes made brief investigative trips to Australia and New Zealand in her 'personal capacity', meaning that she had no United Nations authorization for the visits. In each case she completed a report that was released to the press by local indigenous organizations. The reports were filed by a non-governmental organization as documents during the next session of the Working Group. In 1992 she made a second visit to New Zealand, meeting the prime minister, the members of the Waitangi Tribunal and various Maori leaders, including the Maori Queen. In June 1993, she visited Australia to speak at a conference organized jointly by the Council for Aboriginal Reconciliation and the Constitutional Centenary Foundation, a conference on the position of Indigenous peoples in national constitutions. She has also attended conferences of the Sami Council, the World Council of Indigenous Peoples and the Pacific Asia Council of Indigenous Peoples.
Madam Daes has suggested that she will remain a member of the Working Group but not continue as chair. She has a strong personal commitment to the draft declaration and will continue to be active and positioned in Geneva to work on its passage at the level of the Human Rights Commission. As well she may see herself playing a continuing role in any new body established by the United Nations.
Miguel Alfonso Martinez of Cuba is the second senior member of the Working Group, representing the Latin American region. He has been active in the United Nations system for more than three decades. Alfonso Martinez is the special rapporteur on the Study on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Peoples. He is a professor of international law at a political institution in Cuba. He is a much more 'political' figure than Madam Daes in the technical sense that he has been a political representative of Cuba on a number of occasions. He was made head of the Cuban government mission to the United Nations in Geneva for perhaps a year, while still serving as an independent expert on the Sub-Commission. He headed the Cuban mission to deal with an aggressive campaign by the United States in the Human Rights Commission for onsite human rights investigations in Cuba. This combination of 'political' and 'expert' roles is common on the Sub-Commission, whose current members include two or three ambassadors and other state officials.
Professor Alfonso Martinez lobbied hard to be appointed to do the treaty study. One basic reason for his strong desire to be the special rapporteur is his sense of vulnerability as a Cuban. Because of the regional system that pervades the United Nations, individuals are appointed to positions on the basis of support from regional caucuses. Since Cuba is the only socialist state in Latin America, it is unlikely to get support from the Latin American regional caucus. Indeed, Professor Alfonso Martinez became a member of the Working Group almost accidentally. He was named as an alternate to a person from Argentina. It was only the failure of the Argentinean to attend that put Professor Alfonso Martinez on the Working Group. Then the usual rules, holding that an incumbent has an unspoken right to continue in a particular position, ensured that he would remain on the Working Group. As a Cuban, however, he was still vulnerable in the elections to the Sub-Commission. Becoming a special rapporteur would ensure a continuing role, even if he was defeated in Sub-Commission elections.
It was widely believed during the 1993 Working Group that Alfonso Martinez wanted the draft declaration to remain in the Working Group for another year in the hope that he would become chair and assume some of the responsibility and credit for production of the draft. In arguing for one more year of consideration of the text, he was reflecting the stated wishes of a number of indigenous spokespeople. It was clear that Madam Daes wanted the draft to be completed in 1993. She was very conscious of the pressure being brought to bear on the Working Group by superior bodies to complete the draft in 1993. Professor Alfonso Martinez has also argued strongly for the continuation of the Working Group, on which he would continue as a member.33
There has been much less continuity among Working Group members from the three other regions. Ambassador Judith Attah of Nigeria represented the African region for a number of years. She was with the foreign affairs ministry of the Nigerian government and is currently Nigeria's ambassador to Italy. She has been supportive of the drafting work of the Working Group, saying little and not seeming to regard the issues as affecting Africa. In 1994 she was replaced by Said Naceur Ramadhane of Tunisia. Two Chinese members have sat on the Working Group. The current Asian member is Ribot Hatano of Japan. He has said little. It is not clear whether he thinks that the issues have relevance to Japan or Asia. Over the last couple of years, the member from Eastern Europe has been Mr. Boutkevitch of the Ukraine or Mr. Chernichenko from the Russian Federation.
As this brief analysis of the members suggests, the initiative has been in the hands of the two senior members of the Working Group, Madam Daes and Professor Alfonso Martinez.
At the first session of the Working Group in 1982 it was decided that any indigenous person or representative of an indigenous group could participate. In almost all other United Nations forums participation is limited to states, intergovernmental organizations, accredited non-governmental organizations and special observers, such as the Holy See or recognized liberation movements. The Working Group on Indigenous Populations is the most open body in the entire system of the United Nations and its specialized agencies.34
Another innovation facilitating indigenous participation was the creation of the United Nations Voluntary Fund for Indigenous Populations, which each year funds a number of indigenous representatives to attend the Working Group sessions. Canada has regularly contributed to this voluntary fund. As well three non-indigenous support organizations have a 'human rights fund' for indigenous participation. These two funding sources have been important in increasing indigenous or tribal representation from Asia.
A third innovation facilitating indigenous participation was a relaxing of the rules of the Economic and Social Council for the formal accreditation of indigenous organizations as 'non-governmental organizations' in 'consultative status' with the Economic and Social Council. Formal NGO status allows organizations to attend and speak in many of the human rights bodies of the United Nations. Most of the twelve indigenous organizations that have gained NGO status do not meet normal Ecosoc criteria for accreditation. An organization like the Grand Council of the Crees (Quebec), while it has played a constructive role in Working Group sessions, does not meet normal criteria, for it is not an international organization. In contrast groups like the Inuit Circumpolar Conference, the Sami Council and the World Council of Indigenous Peoples are organizations that obviously meet the criteria.
There is almost no secondary literature describing any of the indigenous organizations with NGO status. As of 1994, there were twelve such organizations.
1. World Council of Indigenous Peoples. This organization was founded on the initiative of George Manuel and other individuals in the National Indian Brotherhood of Canada. It was the most international of all indigenous organizations, but in recent years its activity has been confined largely to Central America and parts of South America. It has not been very active at the Working Group in recent years.
2. International Indian Treaty Council. The Treaty Council was established by the American Indian Movement and has a goal of gaining international recognition for treaties between Indian tribes and states. Representatives of IITC did the basic early lobbying at the United Nations in the 1970s, as documented in the film "Indian Summer in Geneva".35 The organization has ceased to be very active.
3. Indian Law Resource Center. This is a public interest law firm acting for traditional indigenous governments in the United States, with involvement as well in indigenous issues in Nicaragua. Its director, Tim Coulter, played a major role in the early years of the Working Group. The organization now plays little or no role at United Nations meetings.
4. Four Directions Council. This group originally represented four Indigenous peoples but now is a voice for the Mi'kmaq. Russel Barsh, a non-indigenous lawyer, represented the Council for many years and was the single most active person at the United Nations on indigenous issues. He was criticized for acting alone, without representatives of the people he spoke for. In the last few years Mi'kmaq have attended. In 1994 Mr. Barsh was not present.
5. National Indian Youth Council. This U.S. organization was another personal vehicle, but that person is now dead. It had been used to accredit Professor James Anaya, an Apache lawyer, now law professor, who formerly worked for the organization. In 1993 and 1994 NIYC was not represented.
6. National Aboriginal and Islander Legal Services Secretariat. This Australian organization is the personal vehicle of Paul Coe, a long-time Aboriginal activist. He had attended the Working Group regularly since it was established in 1982 but was not present in 1994. Australian Aboriginal participation in the Working Group in recent years has been co-ordinated and funded by ATSIC, the Aboriginal and Torres Strait Islander Commission, established by the government of Australia and composed of individuals elected by Aboriginal people. ATSIC is not an accredited NGO. As a government agency, it would not qualify for NGO accreditation.
7. Inuit Circumpolar Conference. ICC represents Inuit in the United States, Canada, Greenland/Denmark, and Russia. ICC is normally active in the Working Group. It was very active at the United Nations World Conference on Human Rights in Vienna in June 1993.
8. The Indian Council of South America . CISA began as a regional body within the structure of the World Council of Indigenous Peoples and may still play that role.
9. Sami Council. The council represents Sami in Norway, Sweden, Finland and the Russian Federation. It remains a regional member of the World Council of Indigenous Peoples. It applied for separate NGO status after it became frustrated by the decline in activity of the World Council.
10. Grand Council of the Crees (Quebec). This organization is represented regularly at the Working Group by Ambassador Ted Moses, former Grand Chief of the Crees, and Robert Epstein, a long-time non-indigenous adviser. The Grand Council was also active at the World Conference on Human Rights in Vienna in June 1993.
11. Indigenous World Association. This organization was originally the personal vehicle of Professor Roxanne Dunbar Ortiz, a controversial figure who had been very active in the International Indian Treaty Council. After being kicked out of the Treaty Council a few times, Ms. Ortiz formed her own organization. She was an important figure in early lobbying at the United Nations both before and after the formation of the Working Group. She has not attended recent sessions of the Working Group. In 1993 the organization was being revived by the co-chair, Ms. Chokie Cottier, a Lakota activist living in San Francisco.
12. International Organization of Indigenous Resource Development. This organization was formed jointly by cert, the Council of Energy Resource Tribes in the United States, and the Hobbema Four Nations in Alberta, who have substantial energy revenues. In 1992 IOIRD made detailed presentations on specific wording for the declaration, based on discussions at a special tribal gathering in the United States. In 1993 it played no role other than accrediting Canadian member of Parliament Willie Littlechild, who is from one of the Hobbema Four Nations. It was not represented in 1994.
This brief overview of the accredited indigenous NGOs gives no sense of the patterns of indigenous involvement in the Working Group. Far more indigenous people speak for non-accredited groupings than on behalf of the twelve accredited indigenous NGOs. With exceptions, the twelve do not play a role of co-ordinating indigenous participation. ATSIC plays that kind of role for Australian Aboriginals. Regional organizations like CISA, the Asia Indigenous Peoples Pact, and the Pacific/Asia Council of Indigenous Peoples play no apparent role in co-ordinating or organizing indigenous participation for their regions. National, tribal or local organizations predominate, not regional or international bodies.
The open rules of the Working Group have meant that there is no pressure on indigenous representatives to seek to participate under the auspices of the existing accredited organizations or even the non-accredited regional organizations.
In recent years when the Working Group has held private sessions it has turned over the meeting room and the simultaneous interpretation services to the indigenous representatives to discuss their concerns. In earlier years indigenous representatives held evening caucus meetings, with interpretation services provided on a volunteer basis by United Nations interpreters. Sharon Venne and Judith Sayers, both of Canada, have played prominent roles in these meetings, often serving as chair. These sessions have produced common positions on both the text of the declaration and on the process. In 1992 a common position was adopted demanding that an unqualified right of self-determination be recognized in the draft declaration. In 1993 a common position was adopted asking that the draft not be completed in 1993.
An apparently spontaneous indigenous meeting took place in the coffee lounge on the ground floor during the Working Group session on Thursday, 29 July 1993. Indigenous representatives expressed a strong sense of alienation from the process of the Working Group. But rather than restating the demand for another year for the drafting process in the Working Group, the meeting focused on the idea of drafting a parallel indigenous declaration. Chief Oren Lyon, Onondaga, from the United States, proposed that it be based on an earlier declaration. Both the Working Group draft and the indigenous declaration could be submitted to the Human Rights Commission together. A general plan was proposed by Mililani Trask of Ka Lahui Hawaii to assign responsibility for different parts of an indigenous declaration to different regions or organizations, with the hope of a meeting in six months. An Anishnabe representative from Manitoba said, "We will accomplish a lot more on our own. Immediately we gather in a circle, not like the other meeting." A Venezuelan Indian said of the declaration, "We wanted it to be an Indian document." An Andean Indian representative said, "The important thing of the last eleven years [of Working Group meetings] has been meeting with each other." A Kuna Indian from Panama said, "The drafting of the declaration must end. It will not express our wishes, but we will not come back to waste time again and again. Here we just give information to them." A Latin American Indian said, "We can manage time much better than westerners." Another said, "The world has changed and now we have public opinion on our side." An Andean Indian said, "We think this [meeting] is the best time of the whole affair." Chief Oren Lyons confirmed his sense of the meeting: "We do our own statement. We deal with this one that is coming and we go on."
This indigenous meeting came too late to lay the foundation for any new initiatives. While it had important representatives from the Americas and Hawaii, it did not include Australasian, Asian or Sami people. A second meeting of the group held the next day the last day of the Working Group meetings was poorly attended. A proposed press release was not produced. No similar meetings occurred in 1994. The meeting demonstrated a frustration with the processes of the Working Group that seems fairly common among indigenous representatives. While the Working Group has been remarkably open by United Nations standards, it is run by non-indigenous individuals, and drafting is completed in closed sessions.
The draft declaration moved to the United Nations Human Rights Commission in early 1995. Only representatives of accredited NGOs can speak at the Commission under current rules. Some new arrangements will be necessary to have adequate indigenous representation in a new working group at the level of the Human Rights Commission.
Over the years the number of academics attending the sessions of the Working Group has increased. The original group of scholars attending Working Group sessions was made up of advisers to indigenous delegations. But in recent years certain of those people have ceased to be attached to indigenous delegations, and other scholars have come without a history of such attachment. In this way a grouping of so-called 'independent experts' emerged as a separate grouping participating in the annual meetings of the Working Group. Sixty-six "individual scholars, experts on human rights and human rights activists and observers" attended the Working Group in 1994.36
In 1992 Madam Daes appealed publicly and privately to the 'professors' to participate in the debate on the draft. It was clear that Daes was concerned about the extent of polarization between indigenous and governmental delegations and hoped that scholarly input could bridge the gap. The professors did not bridge the gap. Indigenous people wanted to speak for themselves. Government observer delegations saw the professors as generally pro-indigenous, not neutral. In any case the issues dividing the indigenous and governmental delegations were not technical issues. The debate over the use of the phrase 'self-determination of peoples' was not capable of any 'expert' resolution.
In 1993 Madam Daes and the other members of the Working Group departed from their previous strategy of working out compromise wording and accepted indigenous demands for unconditional wording on self-determination. Any expectation that the 'professors' might play the role of reconciling differing positions ended with that decision.
To complete the picture of the participants in the Working Group process, there are always observer government delegations representing a number of states. The most prominent delegations are those of Australia, Brazil, Canada, Chile, Denmark, Finland, New Zealand, Norway and Sweden.
In the 1994 sessions, 42 observer government delegations registered, though perhaps only ten were in regular attendance. The Canadian delegation was headed by Denis Marantz of the department of Foreign Affairs in Ottawa and included other members representing the departments of Foreign Affairs and Justice. Denis Marantz has been the person in the department of Foreign Affairs responsible for indigenous issues since 1989. He has brought continuity to Canada's participation in the Working Group and was also part of the Canadian delegation at the World Conference on Human Rights in Vienna in June 1993.37
There do not appear to have been any organized mechanisms for co-ordinating governmental positions. Mr. Marantz states that Canadian representatives have sought to formulate positions that would be acceptable to other states, in order to make approval of a declaration possible. The most aggressive governmental statements against 'peoples' and 'self-determination' in 1993 and 1994 came from representatives of Brazil. This position was stated by members of Brazilian government delegations and, as well, in 1994 by the supposedly independent 'expert' from Brazil who is a member of the Sub-Commission. The Brazilian statements were not made on behalf of any grouping of states. Only the Nordic states occasionally speak as a group.
The review of developments has been the most dramatic feature of the Working Group's activities. Indigenous peoples come from all regions of the world to tell their stories and accuse the governments of the states within which they now live. Madam Daes has praised the Working Group as
...a unique forum in the world community where the aspirations and concerns of 300 million indigenous peoples could be voiced.38
She also referred to it as a "free and democratic listening post...".
While the review of developments sessions are fascinating, they have been of limited use in work on the declaration. The Working Group has no mandate to hear specific complaints about the abuse of human rights, no mandate to investigate, no mandate to question government representatives. Madam Daes states repeatedly that the Working Group is not a "chamber of complaints" and that communications on specific human rights abuses have to go to other competent bodies within the United Nations system.39 In 1993 she brusquely cut off a young Karen woman, apparently because of the existence of a special rapporteur on Myanmar/Burma at the level of the United Nations Human Rights Commission.
Bangladesh provides an example of the inability of the meetings of the Working Group and the Sub-Commission to allow debate or commentary on any indigenous issues. Each year representatives of the Jumma or hill tribe peoples of Bangladesh give detailed accounts of land loss and attacks by Bengali settlers and military. In 1992, the representative of the government of Bangladesh did not reply to the accusations. In 1993 the Bangladesh representative dismissed the speakers as "terrorists" and denied the existence of a Jumma people (apart from the individual tribal groups). No member of the Working Group commented on either the tribal or the governmental position. The member of the Sub-Commission from Bangladesh spoke in 1993, dismissing the tribal statements. No other member of the Sub-Commission referred to the controversy.
While Madam Daes has visited western liberal democracies like Canada, Australia and New Zealand, she has never attempted an investigative visit to a country like Bangladesh. Such a trip would be either blocked or controlled by the government. The continuous criticism of a government like Bangladesh in the Working Group forum may have consequences in other forums, but it goes nowhere in the Working Group or the Sub-Commission.40
Many of the indigenous statements are difficult to comprehend without specialized knowledge of the situation in the particular state. Many of the comments of government representatives are routine, uninformed denials, sometimes with the added suggestion that the allegations against their state arise out of some dark plot to discredit the good name of the country. The forum does not permit debate. At most there are statements and counter-statements, with the members of the Working Group listening, not commenting. The annual reports rarely name states against whom allegations are made, muting much of the impact of the review of developments.
Even with its deficiencies, the forum provided by the review of developments is valued highly by Indigenous peoples. The annual sessions of the Working Group have become the largest regular human rights meeting in the United Nations calender. More than 790 people attended the sessions in 1994.41 Given that the drafting work on the declaration had been completed at the Working Group level in 1993, some observers expected fewer representatives in 1994. Instead numbers were higher than at any time in the past.
In 1994 the Working Group on Indigenous Populations discussed as two agenda items the question of the future of the working group and the question of a permanent forum of Indigenous people. While these were separate agenda items, the discussion of the two items took place together. This illustrated the uncertainty that exists on whether the two issues are inter-related.
The Working Group has a double mandate: to review developments and to draft standards. It is useful to set out the exact wording of the mandate, which treats the two elements separately:
(a) Review developments pertaining to the promotion and protection of human rights and fundamental freedoms of indigenous populations, including information requested by the Secretary-General annually from Governments, specialized agencies, regional intergovernmental organizations and non-governmental organizations in consultative status, particularly those of indigenous peoples, to analyse such materials, and to submit its conclusions to the Sub-Commission, bearing in mind the report of the Special Rapporteur of the Sub-Commission, Mr. Jose R. Martinez Cobo, entitled "Study of the problem of discrimination against indigenous populations" (E/CN.4/Sub.2/1986/7 and Add. 1-4);
(b) Give special attention to the evolution of standards concerning the rights of indigenous populations, taking account of both the similarities and the differences in the situations and aspirations of indigenous populations throughout the world.42
The information received by the Working Group is mainly the oral and written presentations of indigenous representatives and observer government delegations. Some information comes from intergovernmental agencies. There are no regular requests by the Secretary General producing information for the Working Group (a process referred to in the mandate).
The Working Group has no authority to adjudicate or investigate. The mandate asks the Working Group to "analyse such materials and to submit its conclusions to the Sub-Commission". The Working Group does not do this. The annual reports merely summarize statements. Anything that could be called analysis or conclusions comes in the drafting of standards or in the context of studies (which are authorized separately). This has meant that the function of the review of developments seems to be to aid the Working Group in its work in drafting standards. If the mandate is seen in this way, there would be no reason to continue the sessions of the Working Group once the drafting work was completed. But this is too simple a view of the Working Group. Members of the Working Group are involved in the additional studies on treaties and on indigenous heritage. The forum continues to be valued, it seems, as a forum, without any investigative or adjudicatory activity.
At the United Nations World Conference on Human Rights, held in Vienna in June 1993, Madam Daes gave a strong speech, calling for the transformation of the Working Group on Indigenous Populations into a higher-level expert body with elected indigenous membership. The final statement of the Vienna conference asked the Human Rights Commission to address the mandate of the Working Group:
29. The World Conference on Human Rights recommends that the Commission on Human Rights consider the renewal and updating of the mandate of the Working Group on Indigenous Populations upon completion of the drafting of a declaration on the rights of indigenous people.
In July 1993, the Working Group considered the question of its future role. Miguel Alfonso Martinez supported a continuation of the Working Group with a mandate to review developments and draft standards, saying the drafting of standards was not exhausted with the completion of the draft declaration. He said that no monitoring activities should be given to the Working Group, since there were other United Nations bodies that could undertake that type of activity.43
Professor Alfonso Martinez prepared a working paper on the question of the future of the working group for the 1994 meeting. It described continuing work for the Working Group:
40. There is obviously still a long way to go in order to deal successfully with the serious and pressing plight (in the words of the preamble) of indigenous peoples. Nevertheless, everything seems to suggest that, on the basis of its current original functions, the Group has been able to make significant progress, at least in five key areas, namely, (1) setting relevant international standards through the draft declaration; (2) promoting greater understanding of the scale and seriousness of the problems which indigenous peoples currently face, both by public opinion (national, in many countries, and international) and by many national authorities involved in indigenous matters; (3) identifying such problems and their many facets (matters relating to cultural rights for example) and exploring possible tangible solutions; (4) providing a permanent forum for the free exchange of opinions between Governments and indigenous peoples on issues on which both parties are not only opposed, but also share common interests; and (5) offering a permanent annual framework in which indigenous organizations and people can meet, exchange experiences and, possibly, coordinate their positions.44
He suggested some new tasks, relating to the International Decade on the World's Indigenous People, monitoring the implementation of the declaration when it comes into force, and disseminating information on the declaration, largely through seminars.45 He also suggested expanding the membership of the Working Group to include equal representation of Indigenous people.
The 1994 report of the Working Group commented:
153. The members of the Working Group believed that the Working Group would continue to serve important and necessary functions. Those included its present functions, in particular additional standard setting in fields in which members of the Working Group were engaged in technical studies, and ensuring continuity in the unique dialogue between indigenous peoples, Governments and the United Nations system which had evolved into a major and routine part of the Working Group's annual sessions. Both indigenous peoples and Governments had stated that they greatly valued the opportunity they had had since 1982 to meet annually at Geneva and to engage in a frank exchange of views, on a basis of equality, which had developed into a constructive dialogue.46
The report did not adopt the suggestion on equal indigenous membership, instead urging governments to nominate Indigenous peoples to the positions of members and alternates of the Sub-Commission on Prevention of Discrimination and Protection of Minorities.47
The idea of a permanent forum for Indigenous peoples in the United Nations system originated in the United Nations seminar on self-government held in Greenland in 1991. The idea is referred to in the final statement of the Vienna conference, in the General Assembly resolution establishing the International Decade of the World's Indigenous People, and in resolutions of the Human Rights Commission and the Sub-Commission on Prevention of Discrimination and Protection of Minorities. Other documentation has also been generated on the issue, including a report of the secretariat, a note by Madam Daes, a discussion paper by Denmark/Greenland, analysis by the Aboriginal and Torres Strait Islander Commission and written comments by Canada.48 The report of the secretariat notes some of the suggestions that have been made:
...the proposal to establish a Commission on Indigenous Peoples within the United Nations, an advisory body, a permanent seat for indigenous people, an office for indigenous affairs, a High Commissioner for Indigenous Peoples, and a suggestion that observer status be granted to one or more indigenous organizations at the General Assembly.49
The representative of Denmark, speaking in the Sub-Commission on 22 August 1994, stated:
We agree with the conclusions of the Working Group that an important aspect of the work of the permanent forum should be the operational coordination for development in this special field. To us, this seems to indicate that the permanent forum must be a new separate entity outside the human rights machinery of the United Nations. On this basis, we are inclined to favour the idea that the forum should be a subsidiary body of Ecosoc.50
The August 1994, resolution of the Sub-Commission envisages more consultation on the issue and concludes with these recommendations:
3. Recommends that any future permanent forum play an important role in operational coordination for development and that it enjoy observer status at all relevant United Nations bodies, including the Economic and Social Council, the Commission on Human Rights and the Commission on Sustainable Development;
4. Also recommends that the Centre for Human Rights organize a workshop on a possible permanent forum for indigenous people with the participation of representatives of Governments, indigenous organizations and independent experts.51
Some proposals have suggested only one body, by either turning the Working Group into the new permanent forum or ending the Working Group in favour of a new body. The 1993 report of the Working Group summed up the discussion in the following paragraphs:
For some participants it was not clear whether a future permanent forum should be established in addition to the Working Group or whether the Working Group itself could be transformed into such a permanent forum. However, the usefulness of creating a permanent forum for indigenous issues was not questioned. That forum would deal with a range of problems and could also give advice to Governments.52
The 1994 working paper by Miguel Alfonso Martinez on the future of working group emphasized that the Working Group was already
...a permanent body (or forum) in the United Nations system devoted solely and exclusively to analysing questions affecting indigenous peoples.53
The paper argued that the resolutions of the World Conference, the General Assembly and the Commission on Human Rights envisaged two permanent United Nations bodies the Working Group and a new permanent forum.
A Canadian submission in 1994 on the issue of a permanent forum clearly saw the Working Group as the appropriate body to play the roles suggested for a new permanent forum.54
The exact future of the Working Group or of a new forum within the United Nations remains unresolved.
There was strong pressure on the Working Group to finish the draft declaration in 1993.55 The pressure was not a result of the length of time the drafting has taking. The slow pace was not remarkable by United Nations standards. The concern was with the substantive direction taken by the Working Group. The Working Group is a group of independent experts. When the draft moves to the Human Rights Commission, the political representatives of States will gain control of the process.
Declarations are approved by the General Assembly of the United Nations. Two important examples are the Universal Declaration of Human Rights of 1948 and the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960. As a matter of international law, a declaration is not legally binding on any state simply because it was approved by the General Assembly. The General Assembly is not a legislature. It cannot enact international law. The provisions of a declaration are binding only if they reflect principles of customary international law, that is, the established practice of states on the particular matter. Declarations may be seen as some evidence that particular principles have been accepted by the community of states as normative.
In the United Nations system the texts of treaties are also approved by the General Assembly. After approval, they can be signed by states. They become binding on a state, as a matter of international law, when they have been signed by that state.
It is common for declarations to be followed by the preparation of a treaty on the same subject. For example, treaties on torture and on the rights of children were preceded by declarations. It is possible that a declaration on indigenous rights will be followed, in time, by the preparation of a treaty.
These formal rules that declarations, unlike treaties, are not legally binding are of limited significance. States are less concerned about whether a particular human rights provision is legally binding than about whether the words can be used to criticize state practices.
The Working Group completed its work on the draft Declaration on the Rights of Indigenous Peoples in 1993. The draft will be received by the Human Rights Commission in 1995. The Human Rights Commission is expected to establish a new working group to review the draft declaration. Initial decisions on process will be taken at the Commission meetings in February-March 1995. Any substantive rewriting of the text will take place at the Commission level. After approval of a text by the Commission, passage by the Economic and Social Council and the General Assembly should be assured.
Indigenous people have unified around demands for rights in their activity at the United Nations. They have focused on rights to territories and rights to autonomy, brought together in their basic demand for self-determination. They have sought rights, not co-operation, development or partnership. Robert Williams has commented on this pattern:
In the context of the contemporary indigenous struggle for survival and international legal protection, rights discourse has functioned effectively in generating a shared, empowering vocabulary and syntax for indigenous peoples...Thinking in terms of rights has organized indigenous peoples on a global scale to combat their shared experiences of being excluded and oppressed by the dominant world order. The use of rights rhetoric in international human rights standard-setting bodies such as the Working Group illustrates the ways in which indigenous people can transform the dominant perception of their rights in the international context.56
The focus on "rights discourse" has been clear in domestic Canadian practice as well as at the United Nations. While a number of commentators criticize rights discourse as an inadequate framework for advancing the actual situation of particular groups, it is compelling and it is available. The dominant society values rights. The gaining of rights could be followed by other gains. Rights are easier to organize around than programs.
The Indigenous peoples that use rights language the least are the Sami. They have the closest relationships with governments of any of the indigenous representatives, often sitting as part of government delegations. They have accepted advisory Sami parliaments in Finland, Norway and Sweden, a kind of arrangement that North American Indigenous peoples would quickly reject. They do not dissent from the self-determination rights language that has become the common language of the indigenous delegations, but they do not emphasize it themselves.
The most central debate has been around the use of the phrase 'self-determination of peoples'. The original mandate of the Working Group spoke of indigenous populations. The Working Group now uses the phrase indigenous peoples in its work, but that phraseology has not been accepted in higher bodies. The use of indigenous populations was confirmed as established usage by the Human Rights Commission in 1995, at the insistence of Brazil.
Indigenous representatives seek an unambiguous, unconditional recognition of the rights of indigenous peoples to self-determination. The Working Group resisted such language. The 1992 draft began with the following paragraph:
Indigenous peoples have the right of self-determination, in accordance with international law by virtue of which they may freely determine their political status and institutions and freely pursue their economic, social and cultural development. An integral part of this is the right to autonomy and self-government;
This wording is typical of a series of attempts to develop language that recognizes self-determination but with some qualification, linkage or context. The phrase in the 1992 wording, "in accordance with international law", could be seen as a major qualification, for most scholars would say that current international law does not recognize a right of indigenous peoples within states to self-determination. And the final sentence is it an explanation of what self-determination may mean, or does it limit indigenous self-determination to self-government within states?
Debate over 'peoples' occurred at the 1993 United Nations World Conference on Human Rights in Vienna. The conference was held during the International Year of the World's Indigenous People, and a theme day was devoted to Indigenous people. Madam Daes used the occasion to press for acceptance of the term 'Indigenous peoples':
This brings me to a final observation on a matter which may seem to you purely symbolic, but it is of fundamental importance to Indigenous Peoples themselves. In the title of the Working Group, the Voluntary Funds and everywhere else in the United Nations system we must use the term "Indigenous Peoples". I share the pain and disappointment of Indigenous Peoples at the use of the term "people" in the singular, in the draft Final Document of this Conference. It is a relic of racism and racial discrimination which simply must not be legitimized by this historic Conference on human rights. Indigenous Peoples are varied and distinct societies with the same essential humanity and rights as other peoples. It should be also mentioned that the term "Indigenous Peoples" is already a term of contemporary international law. Accordingly, I implore you not to speak with the dead voice of the nineteenth century on this issue, but to adopt the term "Indigenous Peoples".57
Rosemarie Kuptana, head of the Inuit Tapirisat of Canada, was the most active lobbyist at Vienna on the 's' issue the issue of getting the conference to refer to 'indigenous peoples' in its final statement. In an indigenous briefing on 22 June, she identified Canada as denying the universality of human rights by refusing to treat indigenous peoples as peoples with the same rights as other peoples.58 Indigenous representatives and their supporters demonstrated in the plenary hall by holding up printed sheets of paper with the word 'people' and a large letter S. Security guards started to confiscate any such sheets from people entering the building (for there were to be no demonstrations in the conference itself). Later 'S' t-shirts were printed in time for the 1993 sessions of the Working Group.
Ms. Kuptana lobbied many government delegations in Vienna in an attempt to have the wording of the final statement changed on the floor of the final plenary session. Many states indicated to her that they would support a motion if one were made, but in the end no state was prepared to make the motion. In the normal procedures of United Nations meetings, the statement had been negotiated in closed governmental sessions and was expected by all states to be approved without discussion or vote. In the end it was moved and adopted in a matter of minutes by 'consensus'. Ms. Kuptana understood, from discussions, that 16 or 17 states would have supported an amendment.
The final document, the Vienna Declaration and Programme of Action, contains five paragraphs specifically on "Indigenous people" under section 2, "Persons belonging to national or ethnic, religious and linguistic minorities". This constituted a double defeat for indigenous representatives. They lost the fight on 'peoples' and were classified as 'minorities'. At the beginning of the 1993 session of the Working Group, Madam Daes referred to the conference as a "defeat" for Indigenous peoples. But, she said, a "defeat can come before a victory."
During the Working Group sessions in 1993, the Canadian government delegation informally circulated proposed wording to members of the Working Group, indigenous representatives and others. The proposal read:
All peoples have the right of self-determination in accordance with established principles of international law. This right applies to indigenous and non-indigenous peoples on the same basis and without discrimination.
The article would be followed by an elaboration on internal self-determination, self-government and autonomy within States.59 The wording was interesting. Like the 1992 wording, it is not clear that self-determination would apply to all indigenous groupings.
During the Working Group sessions in July 1993, the Working Group accepted Indigenous peoples' demands for an unconditional statement on self-determination. Article 3 of the draft reads:
Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
When this wording came to the floor at the Working Group, indigenous delegates applauded. It copied general wording on self-determination from the first article of the Covenant on Civil and Political Rights. What is left unsaid in the provision is the actual content of self-determination for indigenous minorities living within states. That debate on the meaning or content of self-determination would take place separately from the declaration or, at least, separately from article 3.
Article 31, appearing much later in the draft, is a possible elaboration of the meaning of article 3:
Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions;
Some indigenous representatives expressed concerns that article 31 would be seen as a definition or limitation of the right of self-determination stated in article 3. Some said they could not support the draft unless article 31 was deleted.60 The exact wording of article 31 denies such a linkage.
There have been differing reactions by observer government delegations to the self-determination wording.
In 1994 New Zealand questioned the meaning of self-determination in this context:
There has been much discussion on self-determination. But are we talking about the international legal concept of self-determination, developed by the UN over the last fifty years, with its focus on decolonization? Or are we talking about a different concept?61
Norway expressed its view on meaning:
On the question of self-determination it is our position that this notion in the context of a declaration on the rights of indigenous peoples, has to be understood as self-determination within the framework of existing states. The emphasis should be on political and democratic participation in the decision making process in questions affecting indigenous peoples.62
Brazil expressed concern in the Working Group and the Sub-Commission:
...some of the provisions contained in articles 3 and 31, by virtue of which indigenous populations would be attributed the right to self-determination as defined by international law, tends to incorporate new and insufficiently matured concepts which are not, in their present formulation, consistent with constitutional and international law practices... These provisions might be interpreted as recognizing indigenous communities as subjects of international law and thus exempting them from the jurisdiction of the State where they live.63
Denmark, in 1994, speaking for the Danish government and the Greenland Home Rule government, unequivocally supported the wording adopted by the Working Group, the only government delegation to do so:
Denmark supports the text in its entirety. In particular, I wish to point out that we fully support the paragraphs on the right of self-determination of indigenous peoples. We agree with the Working Group that this right must be recognized without reservations and according to established international law.64
Canada and Australia did not address the self-determination issue directly in their 1994 statements. The 1993 and 1994 reports of the Working Group summarized the debate, noting support and opposition from different indigenous representatives and different observer government delegations.
There are two ways of limiting the application of self-determination of peoples in this context. The first is to refuse to apply the term peoples to indigenous groupings living within states. The second is to hold that Indigenous peoples within states are entitled to limited self-determination, limited to appropriate levels of autonomy or self-government and not including a right of secession. Both these approaches are in use in the current debate. Brazil's opposition, for example, is on both grounds, seeming wary of international standards even on autonomy or self-government.
It has been suggested that Canada's opposition to the use of the word peoples is paradoxical, for section 35 of the Constitution Act, 1982 , refers to the "aboriginal peoples of Canada". But international and domestic legal systems are separate. Terms may not mean the same thing.65
Professor Rosalyn Higgins, a respected international law scholar from the United Kingdom and a member of the Human Rights Committee, confines the term people to the inhabitants of a state. By this reasoning there is only one 'people' in Canada. Only Canadians as a whole have a right of self-determination. The only exception she would concede is for the few overseas colonies that still exist, where the people in the territory would have a right to independence. She is anxious to counter the ethno-nationalism that is ravaging parts of the former Soviet Union and the former Yugoslavia. While she will support self-government and autonomy as essential for many minority and indigenous groupings, she opposes using the terminology of self-determination of peoples in such contexts. She would argue that examples of successful secession Bangladesh, the Baltic States, Eritrea do not demonstrate that the people had a 'right' to secede. Secession is more a matter of fact than of right, and the community of states will extend recognition to territories that have succeeded in establishing themselves as separate states.
It is clear that the concern with peoples is simply a concern with self-determination. It may be more productive to turn to the meaning of self-determination in contemporary international law.
The primary use of the concept of self-determination in the post-war period has been in decolonization. In this context, self-determination means that the territory has the choice of independent statehood, free association, autonomy (perhaps as a component of a federal state) or full political integration. The choice is almost always for independent statehood, though there are examples of other choices. International law draws a sharp distinction between states and non-state political entities. This has created a situation, articulated by Canada and Brazil, of fear of small independent units within the state. Would Canada look like a piece of Swiss cheese, with hundreds of 'San Marinos' inside our borders?66
On the face of it this fear seems absurd. A little terminological looseness in a declaration is not going obtain full membership in the United Nations or a seat on the Security Council for the Sarcee Nation or Davis Inlet. What is really going on in this debate?
First, we are uneasy about jurisdictional issues relating to First Nations communities within the country. During debates on the self-government provisions in the Charlottetown Accord there were suggestions that Indian people might be able to deal in marijuana, build mega-malls in residential areas and operate casinos. If we do not have stable ideas on the appropriate level of autonomy for First Nations communities within Canada, it seems risky to move further into unknown territory by accepting a right of self-determination under international law.
Second, Canada is generally unwilling in domestic or international activity to use terminology that could be cited by Quebec nationalists as a basis for separation. Canadian concerns about Quebec nationalism have often affected Canadian governmental attitudes toward First Nations. Dr. Sally Weaver's fine study of the drafting of the 1969 white paper on Indian policy shows how 'special status' was being denied both to Quebec and to Aboriginal peoples for basically the same reasons.67
Third, Canada faces the fact that certain traditionalist or militant indigenous groupings do claim the right to independence. The position taken by the Mohawk warriors in the Oka confrontation was a sovereignty position. National Indian leaders in Canada will not disavow 'sovereignty' language, because to do so would alienate one part of their very diverse constituency. And there can be fears of other possibilities in northern areas with indigenous majorities. In an interview during the United Nations World Conference on Human Rights in Vienna in 1993, Denis Marantz said that any endorsement of self-determination for Indigenous peoples could encourage groups like the Cree of Quebec to seek independence if Quebec were to leave the Canadian federation.68 If the Cree could control the hydroelectric facilities in their territories, independence would be viable.
Brazil has long had concerns about sustaining jurisdiction over the vast Amazonian hinterland. That seems part of the backdrop to Brazil's concerns about the language in the draft declaration. India, as well, has real concerns with territorial integrity. Naga representatives state regularly in the Working Group that they are not part of India. They declared independence one day before the proclamation of independence by India.
In other words, opposition to the self-determination language is not driven by concerns about specific or clear legal consequences of the terminology. It is driven by uncertainty, by problems in domestic indigenous policy and by particular threats or fears relating to territorial integrity.
There is general agreement on ideas of autonomy or self-government for Indigenous peoples living within states. There appear to be three international law formulations that could support autonomy and self-government:
1. All peoples have a right of self-determination. If the people live in an overseas colony, the people have the right to choose sovereign independence or whatever other political status they wish. If the people is an Indigenous people within the boundaries of an existing state, their right to self-determination must be balanced against the right of the state to territorial integrity. This balancing means that the people have the right to choose the extent of autonomy or self-government that is appropriate to their situation within the particular state. The extent of autonomy or self-government will have to reflect the concrete situation faced by the people (considering factors such as numbers, territoriality, extent of cultural distinctiveness). A denial of equality or human rights or self-government could give the people an option for independence.
2. Indigenous peoples within states have a right to 'internal self-determination', as do all other individuals or groups within the state. In the case of cultural minorities and indigenous peoples, effective participation in the life of the state requires some recognition of their distinctiveness. In most cases this will require some decentralization, autonomy or self-government. A denial of their rights could possibly justify secession.69
3. Indigenous peoples are cultural minorities. Cultural minorities have a right to preserve and develop their cultural distinctiveness. To accomplish this goal, the minority must have a degree of autonomy. This is particularly necessary for Indigenous peoples, where cultural difference is often very great.
It is striking that academics such as Patrick Thornberry, Richard Falk, Rosalyn Higgins and Ian Brownlie all tend to agree on two points in this context:
1. They rule out any general right of secession of Indigenous peoples, while recognizing such a right in particular, highly exceptional circumstances.
2. They accept that regimes of autonomy or self-government are appropriate structural responses to the realities of continuing communities of Indigenous peoples.70
The scholars do not agree, however, on the exact terminology to be used. Madam Daes stated in the 1992 sessions that the phrase self-determination "was used in its internal character, that is short of any implications which might encourage the formation of independent States."71
One particular issue arises in the case of Canada. If Quebec were to secede, would Indigenous peoples within Quebec have any right to choose their status? The debate is not over the small reserve communities in southern Quebec, but over the large territories in the North where the majority populations are Cree or Inuit. The debate also involves consideration of the different historical borders of the province of Quebec. It is certainly accurate to say that the 1912 border extension added large northern areas whose peoples were racially, linguistically, culturally and religiously separate from the Francophone populations of southern Quebec.
The Cree prepared a submission to the United Nations Human Rights Commission, dated February 1992, that argued a Cree right of self-determination if Quebec seceded.72
Quebec commissioned five prominent international law scholars to prepare a legal opinion on the right of Indigenous peoples in Quebec to self-determination and secession. The scholars, including Rosalyn Higgins of the United Kingdom and Thomas Franck of the United States, asserted
1. that Quebec did not have a right of self-determination (in the sense of a right of secession), and
2. neither did the Indigenous peoples within Quebec.
International law does not recognize a right of Quebec to secede, but a successful secession (as with Bangladesh, Eritrea, the constituent units of the former Soviet Union and Yugoslavia) would be recognized internationally.
What would be the proper borders for an independent Quebec? Decolonization of overseas territories has adhered to the principle of uti possidetis , by which a colonized area becomes independent using the state boundaries created for the colony. For example, Nigeria was not a logical construct in terms of tribal identities or in terms of pre-colonial black African political units. Yet it decolonized as Nigeria, using the territory ruled by the United Kingdom as Nigeria. By this logic, Quebec, though an artificial construct, would become independent as Quebec, including the Indigenous peoples in the territory.
But Quebec has not been considered a colony. It is a political unit within a federal state. What significance do the internal political boundaries of a federal state have in the determination of these highly unusual issues? Until recently it appeared that they would have none, but the recognition of new states in the former Soviet Union and the former Yugoslavia has generally proceeded along the lines of recognizing the former constituent units. The problems with Bosnia-Herzegovina demonstrate dramatically the failure of this principle to be applied systematically in practice, but it can be argued that the war is in violation of international law. Another prominent example of this kind of problem is Crimea, with a Russian majority population, but part of an independent Ukraine because of the internal political divisions that had been used in the former Soviet Union.
The use of uti possidetis is justified virtually exclusively on the pragmatic grounds of minimizing ethnic claims or political uncertainty in favour of continuity. It therefore does apply logically both to the independence of former overseas colonies and to the independence of former members of federal states.
But the boundaries of the province of Quebec are not the only important boundaries. Kingsbury has raised a parallel question in relation to Yugoslavia.73 If you recognize the former republics of Yugoslavia, why do you not recognize the autonomous area of Kosovo within Serbia? If you recognize Quebec, should you not recognize that the Cree and Inuit have separate legal regimes in northern areas? These are not simply local, municipal-style rights. They relate to the national government, to the national constitution and to an emerging international law on the rights of Indigenous peoples.
There has always been concern about the balance between individual rights and collective rights in the draft, with Indigenous people arguing strongly for an almost exclusive focus on collective rights.
The first two preambular paragraphs begin the document with a positive invoking of collective differences:
Affirming that indigenous peoples are equal in dignity and rights to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such,
Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind,
The first two operative paragraphs affirm that general human rights apply equally to Indigenous peoples and Indigenous individuals. Articles 19 and 20 grant rights of full participation in the institutions of the state within which the Indigenous people finds itself. This is, in effect, the anti-apartheid provision. Apartheid provided for group rights but denied the residents of the homelands equal rights with other South Africans outside the homelands.
The issue of collective and individual rights has been contentious over the last decade. Perhaps now the idea of the co-existence of both categories of rights is accepted.74
There is a concern with what limits may be placed on indigenous self-government to protect the human rights of individual members of the self-governing units. This has been a debate in Canada for a number of years. Paragraph 33 of the draft reads as follows:
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognized human rights standards.
This provision, making indigenous autonomy and indigenous law subject to international human rights norms, is in line with the recommendation of the Special Committee on Indian Self-Government of the House of Commons and with Bill C-52, the self-government bill introduced by John Munro as minister of Indian Affairs in 1984, but never debated or enacted. First Nations leaders have been prepared to have their legal systems judged by international human rights law, but have been uneasy about the application of domestic human rights law, which might be more individualistic or assimilationist in character.
At the specific suggestion of the Canadian government delegation in 1993, another article stating a human rights norm was introduced, one taken from the 1983 amendments to the Constitution Act . Article 43 of the draft reads:
All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals;
Articles 33 and 43 were not opposed by indigenous representatives.
The provisions on lands are very strong:
25. Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used, and to uphold their responsibilities to future generations in this regard;
Article 26 gives Indigenous peoples ownership and control over the lands and resources "they have traditionally owned or otherwise occupied or used". Article 27 provides for the restitution of lands taken without the free and informed consent of the Indigenous peoples (while recognizing that compensation, preferably in the form of land, is a possible alternative to restitution). Development projects on indigenous lands require "free and informed consent" by article 30.
Two articles deal with indigenous cultural and intellectual property, the first focused primarily on material culture and the second on intellectual property, though the sections clearly overlap:
Article 12 Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature, as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.
Article 29 Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property.
They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.
As in Canadian discussions on self-government, there was debate on whether there should be a list of powers of indigenous self-government or a more general description of the purposes of self-government. In the 1992 sessions, the concern was put in terms of whether there should be a 'shopping list' of powers. The result was article 31, already quoted but relevant to examine again:
Indigenous peoples, as a specific form of exercising their rights to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.
This basic provision is supplemented by provisions on membership/citizenship in the indigenous collectivity (article 32), indigenous law (article 33), education (article 15), media (article 17), child welfare (article 6), and health and housing (article 23).
In 1992 some states were concerned that national environmental laws apply on indigenous lands.
Australian and New Zealand government representatives objected specifically to the inclusion of 'criminal jurisdiction' in a previous draft.
A representative of the National Maori Council suggested the inclusion of 'foreign relations'. The current draft provides only for traditional cross-border contacts with other Indigenous people (article 35), which in North America would be understood as Jay Treaty rights, not foreign relations in general.75
Though the treaty study has not been completed, the draft declaration has two references to treaties. The thirteenth preambular paragraph reads:
Considering that treaties, agreements and other constructive arrangements between States and indigenous peoples are properly matters of international concern and responsibility;
The substantive provision is article 36:
Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or 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;
Perhaps by giving the right only to Indigenous peoples, the article leaves open the possibility of Indigenous peoples challenging treaties as unequal or imposed.
To many observers it is peculiar that the draft declaration has no definition of the term indigenous. The International Labour Organisation has suggested annually that the draft should follow the ILO pattern of referring to both Indigenous and tribal peoples. The issue of adding 'tribal' was raised briefly in the 1993 Working Group sessions. As with past versions, the 1993 draft has no definition of indigenous and does not add the word tribal.
The two issues are related. The areas where governments have asserted that they do not have Indigenous peoples tend to be areas where formal state usage is 'tribal' or 'minority', or 'nationality' or 'minority nationality'. So, for example, India and Bangladesh deny that they have Indigenous peoples but acknowledge that they have tribes. The main reason for adding 'tribal' would be to make it clear that the declaration is intended to apply in South Asia. The main reason for not including tribal and not including a definition of indigenous is to avoid provoking opposition from certain Asian states (and possibly African states as well).
The decision against a definition can be put in a different, more positive way. There is broad agreement on a large core group of peoples who are Indigenous those in the Americas, Australasia and the Nordic states. The declaration should be left open to any evolution of understanding of the category or to any developments in usage. By this analysis, the scope of the category can evolve as our understandings develop.
Kingsbury has suggested that United Nations usage might assist in giving content to the term, pointing to decisions of the Voluntary Fund as to which individuals should receive funding to attend sessions of the Working Group. In that context individuals from India and Burma have been funded, although those states do not accept the term indigenous. A more visible ind