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Social Justice Report 2002

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    • Chapter 6: International developments in the recognition of the rights of Indigenous peoples

    Indigenous peoples in international law – A history of exclusion

    The Working Group on Indigenous Populations – from exclusion to participation at the international level

    Commitments to developing partnerships with Indigenous peoples – from Rio and Vienna to the International Decade of the World’s Indigenous people

    ‘You have a home at the United Nations’ – The creation of the Permanent Forum on Indigenous Issues

    Recognising and protecting the rights of Indigenous peoples – The Special Rapporteur, Durban and the Draft Declaration

    Clarifying the complementary roles of the various mechanisms addressing Indigenous issues within the United Nations – emerging challenges

    Conclusion and recommendations – Meeting the objectives of the International Decade

    The circumstances of Indigenous peoples were virtually invisible at the United Nations approximately thirty years ago. Very little attention had been devoted to their situation and their claims were by and large unheard in international fora. Since the early 1970s, however, Indigenous peoples have made significant inroads towards the recognition of their rights and acceptance of their legitimate place within the international community. The results, while incomplete, have been nothing short of extraordinary.

    In this chapter I examine the current status of the recognition of the human rights of Indigenous peoples at the international level and in the processes of the United Nations. In particular, I examine these issues within an historical context and within the framework of the United Nations International Decade for the World's Indigenous People. Where relevant, I also note the role of the Australian Government in occasionally supporting and occasionally opposing international developments on Indigenous issues.

    Developments in the United Nations in the past three years, particularly the establishment of the Permanent Forum on Indigenous Issues and the appointment of a Special Rapporteur to focus on the situation of Indigenous human rights, offer great potential for the protection and promotion of Indigenous human rights at the international level. But these important developments have been accompanied by a continued reluctance, and in some instances outright opposition, by governments to provide full and non-discriminatory recognition to the rights of Indigenous peoples. Consequently, as we enter the final two years of the International Decade for the World's Indigenous People, we find that many of the objectives of the Decade have barely begun to be met and that Indigenous peoples continue to face uncertainty in several key areas at the international level.

    Indigenous peoples in international law - A history of exclusion

    Throughout this chapter I will be highlighting two main aspects to Indigenous peoples' struggle for recognition at the international level. The first concerns the participation of Indigenous peoples or put differently, the struggle for recognition of our legitimate place at the negotiating table. The second is the struggle for the recognition and protection of Indigenous peoples' distinct rights in international law.

    The two are inter-related and cannot be separated. Indeed they have operated in tandem for the past thirty years, with gains in participation at the international level influencing the development of standards relating to Indigenous peoples. In turn the elaboration of such standards has also opened up further mechanisms and processes to Indigenous participation.

    The struggle for participation at the international level and the recognition of Indigenous rights has at its core the same purpose. As Sharon Venne has stated: 'The goal of Indigenous Peoples is to act and be treated as subjects - and not as objects - in international law'.[1]

    This goal is to have recognised that Indigenous peoples possess systems of organisation, governance and law that continue to be observed, and that have survived colonisation. The consequence of this is that Indigenous peoples retain authority over their cultures and that it is legitimate - and essential - that they be involved at the international level in matters concerning them and in instituting efforts to protect their cultures.

    Historically, Indigenous peoples have been denied such involvement and protection in international law. This dates back to the time of the Spanish conquests of the Americas in the 15th and 16th centuries. The self-constructed doctrine of discovery, and later that of terra nullius, were used to define Indigenous peoples as lacking any form of international legal personality. By the nineteenth and early twentieth century, international law had shifted even further to a system dominated by predominately western, colonising nations that protected the integrity of the territorial gains made through colonisation. This construction of international law was based on the premise that 'international law upholds the exclusive sovereignty of states and guards the exercise of that sovereignty from outside interference'.[2]

    This approach has been reinforced through the structures and processes of the League of Nations and its successor, the United Nations. Both organisations are comprised of nation-states who are primarily concerned with the preservation of their territorial integrity, their sovereignty and their power. The two world wars which led to the creation of these organisations, however, also created challenges for them such as the protection of minorities, the recognition of universal, inherent human rights, and processes of decolonisation. Each of these processes has challenged this State-centred approach and has slowly seen the recognition of non-State actors at the international level.

    For Indigenous peoples, the fact that international law is primarily determined by those who have colonised their lands and subjugated them has operated as the primary obstacle to the consideration of Indigenous issues at the international level until into the 1970s and of any recognition of Indigenous peoples as subjects at international law until into the 1980s. It clearly remains the primary obstacle to the full realisation of Indigenous human rights at the international level today.

    The basic United Nations texts and treaties, for example, contain no specific or explicit reference to Indigenous populations.[3] It was not until 1990, when the Convention on the Rights of the Child entered into force, that there was any explicit reference to Indigenous peoples in a human rights treaty. Article 30 of that Convention today remains the sole human rights treaty provision that specifically refers to Indigenous peoples.

    This is not to say that there was no consideration of Indigenous issues until the 1970s.[4] But Indigenous issues were generally considered as part of a broader focus on human rights problems such as forced labour, slavery or through a focus on the human rights situation in a particular country or region.

    The one international agency that had devoted specific attention to Indigenous peoples up to the 1970s was the International Labour Organisation (ILO). The ILO had identified Indigenous peoples as a disadvantaged group within societies as early as the 1920s. It drafted a number of conventions and recommendations between 1936 and 1944 which related to the recruitment and conditions of employment of Indigenous peoples. The ILO's intervention, however, was premised on the basis that it was the lack of education and the primitive nature of Indigenous societies that left Indigenous peoples vulnerable to the type of exploitation and enslavement that existed at the time.[5] 'The intent was to change Indigenous Peoples… rather than respecting their rights'.[6]

    The ILO then created an international convention concerned principally with the working conditions of Indigenous peoples between 1953 and 1957. ILO Convention 107, titled Convention concerning the protection and integration of Indigenous and other tribal and semi-tribal populations in independent countries, aimed to ensure that the process of integration of Indigenous peoples into mainstream economies was not coercive or abusive. The Convention continues the trend of treating Indigenous peoples as objects of international law with no international legal personality. Indigenous peoples had no direct role in negotiating the convention and for years afterwards campaigned vigorously against the convention's assimilationist goals. ILO Convention 107 was ultimately revised and replaced with ILO Convention 169 in 1989.[7]

    Despite the seriously flawed nature of ILO Convention 107, it remains historically significant for its recognition that Indigenous peoples occupy a special status in national society and require special protection, and for the recognition of Indigenous peoples' individual and collective rights to ownership of traditional lands.[8]

    The 1970's can generally be seen as the turning point at which the international community began to pay more intensive and sustained attention to the situation of Indigenous peoples. In 1971, a study on racial discrimination submitted to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities (the Sub-Commission) included a chapter titled 'Measures taken in connection with the protection of Indigenous peoples'. This included a recommendation that a specific study be conducted on the situation of the problem of discrimination against Indigenous populations.[9] Such a study was authorised by the Economic and Social Council (ECOSOC) of the United Nations in 1971 and was commenced by Jose R. Martinez Cobo in 1972.[10]

    The Cobo report, as it is commonly known, was prepared over the next decade. It was submitted to the Sub-Commission in 24 instalments between 1981 and 1984 with its conclusions and final recommendations compiled in a consolidated volume in 1987. Underpinning the report's detailed conclusions and recommendations is the recognition that, despite the great diversity of their cultures and systems, Indigenous peoples throughout the world have common experiences of discrimination, oppression and exploitation. It recognises that in many countries they were at the lowest socio-economic rung of society, and did not have equality of opportunity in employment and access to services; and that they lacked protection in the fields of health, education, culture, religion and the administration of justice, and could not participate meaningfully in political life. In submitting the report to the Sub-Commission, Special Rapporteur Cobo stated that it should be regarded as an appeal to the international community to take heed of the discrimination practised against Indigenous peoples and for action to be taken accordingly.[11]

    The Cobo report remains influential at the international level, with programmes and policies still being introduced which are in accordance with its recommendations nearly twenty years after they were first submitted to the Sub-Commission.

    The 1970s also saw the international mobilisation of Indigenous peoples with the support of non-government organisations (NGOs). In 1977, an historic NGO conference of Indigenous Peoples of the Americas was held in Geneva. It resulted in the Declaration of principles for the defense of the Indigenous Nations and Peoples of the Western Hemisphere as well as a series of resolutions calling for:

    This was followed in 1978 by the first World Conference to Combat Racism and Racial Discrimination. The final declaration of the conference included a call for States to recognise the rights of Indigenous peoples to call themselves by their proper name and to express freely their ethnic, cultural and other characteristics; to have an official status and to form their own representative organisations; to carry on in their territories with a traditional way of life, should they so choose; to maintain and use their own languages; and to receive education and information in their own languages.[13]

    An international NGO conference on Indigenous peoples and land was held in Geneva in 1981. The conference sought to 'call the attention of the international community to the desperate conditions in which they live and to their struggle to survive as nations and communities' and to the root cause of denial of rights to their land.[14] The conference specifically called for the 'due participation' of Indigenous peoples in activities by the Sub-Commission and Commission on Human Rights to formulate standards incorporating the specific rights of Indigenous peoples in response to the recommendations of the Cobo report; and for the establishment of a Working Group on Indigenous Populations.

    In response to these calls and the preliminary findings by Cobo, the Working Group on Indigenous Populations (WGIP) was established at the United Nations in 1982 as a forum to specifically address the issues of Indigenous peoples.

    The Working Group on Indigenous Populations - from exclusion to participation at the international level

    The Working Group on Indigenous Populations was established by the Economic and Social Council (ECOSOC) of the United Nations in 1982. The Working Group comprises five independent experts who are to implement the Working Group's twofold mandate.

    First, they are required to 'review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of Indigenous populations' and accordingly to submit conclusions and recommendations to its parent body, the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities (recently renamed the Sub-Commission on the Promotion and Protection of Human Rights).

    Second, they are required to 'give special attention to the evolution of standards concerning the rights of Indigenous populations, taking into account both the similarities and the differences in the situations and aspirations of Indigenous populations throughout the world'.[15]

    The Working Group was created at the lowest possible level of the United Nations. For its recommendations to be adopted, for example, requires approval by the Sub-Commission, the Commission on Human Rights, the Economic and Social Council, followed by the Third Committee of the General Assembly and finally the Plenary of the General Assembly.

    Its influence over the first twenty years of activity, however, has far outstripped its operational level within the United Nations. The Working Group consistently attracts a large number of participants across governments, United Nations agencies, Indigenous organisations and non-government organisations. The 2002 session, for example, was attended by 1076 people representing 170 NGOs and Indigenous organisations.[16]

    The contribution of the Working Group in shaping the consideration of Indigenous issues at the United Nations has been most felt in three ways.

    First, its historic - and ongoing - significance remains the opening up of international processes to the participation of Indigenous peoples. As the Working Group's Chairperson for most of its twenty year history, Professor Erica-Irene Daes, has stated:

    [T]he most important achievement of the WGIP should be considered the mobilisation of the international movement of the world's Indigenous peoples. Above all it became the most important meeting point for the Indigenous peoples. The United Nations created a space where Indigenous people feel free to speak frankly and felt safe to share their experiences without fear of retaliation. As it is well known everywhere else at the United Nations system, the right to speak is limited… (Early on) the WGIP decided on a number of basic unwritten rules of procedure, which allowed any Indigenous person to address the WGIP…

    While the Chairperson has often stated and explained that the WGIP is not a 'chamber of complaints' the annual sessions have become, in certain cases, a place for airing grievances. Although these complaints were formally unacceptable they created opportunities for the matters of these complaints to be discussed with Governments and thus a constructive liberal dialogue has developed for the benefit of all concerned. Also the principles of mutual respect between all the participants to the WGIP including Governments, and solidarity between the Indigenous peoples of different regions of the international community, were developed.[17]

    The flexible processes for participation of Indigenous organisations in the Working Group's deliberations set a precedent which has been followed by some UN agencies and international organisations. The waiving of the requirement for (Indigenous) non-government organisations to be in consultative status with ECOSOC in order to participate has provided unprecedented access for Indigenous peoples to put their claims in the international arena.

    A significant feature of this participation has been its equal nature. Ordinarily, the participation of NGOs in UN processes is secondary to the role of States. The members of the Working Group, however, have not replicated the pre-eminence of the views of States in its operating procedures allowing greater space and recognition for the views and suggestions of Indigenous peoples. Accordingly, the Working Group can be seen as a process of engagement with Indigenous stakeholders by the United Nations.

    Second, the Working Group has been highly successful in influencing the agendas and advising the various agencies of the UN on their approaches to Indigenous peoples. It has made recommendations, subsequently implemented, for:

    Nearly every activity of the UN relating to Indigenous peoples since 1982 can be traced back to the Working Group's deliberations and recommendations in some way.

    This achievement of the Working Group, however, should not be seen purely as historic. It has an ongoing dimension. In recent years the Working Group has adopted a thematic approach to its work - focusing each year on one particular set of issues such as Indigenous children and youth (2000), the right to development (2001 and 2002), the impact of globalisation on Indigenous peoples (the forthcoming session in 2003), conflict resolution of Indigenous issues (2004), Indigenous traditional knowledge (2005) and Indigenous children and youth (2006).

    The Working Group continues to make an important contribution to international developments and the evolution of standards. At the 2002 session it was also agreed that the Working Group would annually review progress in implementing relevant provisions of the Programme of Action of the 2001 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance.

    It is anticipated that the Working Group will continue to form a useful source of information for other newly created mechanisms dealing with Indigenous issues within the United Nations. The newly appointed Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous peoples, for example, stated in his inaugural report to the Commission on Human Rights in April 2002 the importance of the work of the Working Group:

    Its annual reports to the Sub-Commission comprise a wealth of information on the human rights situation of Indigenous peoples and the accumulated communications and interventions of Indigenous associations and other non-governmental organisation (NGOs) provide a rich overview of current concerns. In obtaining information for his activities, the Special Rapporteur expects to draw extensively on this material.[18]

    Third, the Working Group has fulfilled an enormously valuable standard setting role under the second element of its mandate. In 1985 the Working Group began preparing a declaration setting out the rights of Indigenous peoples, through a process of engagement with the comments and suggestions of participants in its sessions. At its eleventh session in July 1993 the Working Group agreed on a final text for the Declaration on the Rights of Indigenous Peoples and submitted it to the Sub-Commission.

    In 1994, the Sub-Commission (which is comprised of independent experts) adopted the WGIP's Declaration unaltered and submitted it to the Commission on Human Rights (a body comprised of Government representatives) for consideration. The Commission on Human Rights then established an inter-sessional, open-ended working group [19] on the Draft Declaration which has been considering the Declaration as drafted by the WGIP for the past seven years.

    For Indigenous peoples, the Declaration is seen as a compromise which does not fully reflect their aspirations. At the same time, it is seen as the best that could have been achieved, and an important document which reflects the minimum standards of treatment necessary for the survival and well-being of Indigenous peoples the world over.

    The Declaration consists of 19 preambular paragraphs and 45 Articles. It covers rights and freedoms including the preservation and development of ethnic and cultural characteristics and distinct identities; protection against genocide and ethnocide; rights related to religions, languages and educational institutions; ownership, possession or use of Indigenous lands and natural resources; protection of cultural and intellectual property; maintenance of traditional economic structures and ways of life, including hunting, fishing and cultivation; environmental protection; participation in the political, economic and social life of the States concerned, in particular in matters which may affect Indigenous people's lives and destinies; self-determination; self-government or autonomy in matters relating to Indigenous peoples' internal and local affairs; traditional contacts and cooperation across State boundaries; and the honouring of treaties and agreements concluded with Indigenous peoples.

    The Declaration as drafted also foresees mutually acceptable procedures for resolving conflicts or disputes between Indigenous peoples and States, involving means such as negotiations, mediation, arbitration, national courts, and international and regional human rights review and complaints mechanisms.[20]

    While the Draft Declaration has floundered in the Government controlled Working Group on the Draft Declaration, it has already been of great normative value. The consistent elaboration of Indigenous peoples' claims, particularly in relation to cultural identity, self-determination, informed consent and self-identification, has influenced the policy approaches of international agencies such as the World Bank, UNESCO, UNDP and World Health Organisation.

    It was also a major influence in the International Labour Organisation's decision to revise ILO Convention 107 and develop ILO Convention 169, titled Convention concerning Indigenous and tribal peoples in independent countries, in 1989. [21] This Convention has been equally controversial to ILO Convention 107 in part due to its treatment of Indigenous self-determination in Article 1(3). This provision seeks to defer recognition of a right to self-determination by stating that the use of the term 'peoples' in the convention has no meaning or implications in international law. Indigenous peoples in Australia advised the Government in 1995 not to ratify the convention due to concerns that its provisions are patronising and do not appropriately reflect Indigenous aspirations.

    Human rights treaty committees have also responded to the advocacy of Indigenous peoples' rights through the processes of the Working Group. Both the Committee on Economic, Social and Cultural Rights and the Human Rights Committee have interpreted common Article 1 of the international covenants (the right of all peoples to self-determination) as applying to the situation of Indigenous peoples.[22] Through a number of individual communications and general recommendations, the Human Rights Committee has also elaborated on the scope of Article 27 of the International Covenant on Civil and Political Rights (the protection of minority group rights) and its application to the land and resource rights of Indigenous communities, and the positive obligation on States to protect Indigenous cultures. [23]

    Similarly, the Committee on the Elimination of Racial Discrimination (CERD) has issued a General Recommendation emphasising that the International Convention on the Elimination of All Forms of Racial Discrimination places obligations on States who are parties to the Convention to take all appropriate means to combat and eliminate racism against Indigenous peoples, and calling on States to:

    a) recognise and respect Indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation;

    b) ensure that members of Indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on Indigenous identity;

    c) provide Indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;

    d) ensure that members of Indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent;

    e) ensure that Indigenous communities can exercise their rights to practice and revitalise their cultural traditions and customs, to preserve and practice their languages. [24]

    The CERD has also, under its early warning / urgent action procedure and periodic reporting mechanism, highlighted the necessity for the informed consent of Indigenous peoples in decision-making that affects their lives. [25]

    Despite the completion of the Draft Declaration, the Working Group has yet to exhaust its standard setting function. At the 2002 session of the Working Group, proposals were received for the elaboration of standards relating to issues as varied as relationships between Indigenous peoples and mining or logging companies; developing legal standards on intellectual property with a focus on traditional knowledge; a legal framework for free, prior and informed consent; and environmental or development accountability standards. [26] This is in addition to the ongoing work referred to above on Indigenous peoples and development.

    Members of the Working Group also suggested possible elaboration of standards on relationships between Indigenous peoples and international bodies; the impact of trans-national corporations; the review of monitoring and implementation processes; and elaboration on Indigenous peoples' economic, social and political rights. [27] Ultimately, the Working Group recognised the importance of undertaking new standard setting activities and decided to prepare for consideration at the next session in 2003 a list and commentary of potential future standard setting activities; an overview and commentary on the most controversial aspects of the Draft Declaration; and a potential list of studies to be undertaken in the short and medium term. [28]

    The importance of the role of the Working Group in giving voice and attention to the situation of Indigenous Peoples and in influencing developments across the full range of UN activities cannot be underestimated. As Maivân Clech Lâm notes:

    Had Indigenous peoples been required, back in 1982, to take their case initially to a states-composed body like the current [Working Group] on the Draft Declaration, the ensuing years would have looked very different. States are intimately associated with the status quo, which is precisely what Indigenous peoples needed altered; and state representatives, at their best, envisage alternatives to it with great difficulty. The experts who served in their individual capacities on the WGIP, on the other hand, enjoyed the possibility of critically distancing themselves from that status quo. Certainly, they conceived of their task as one of identifying standards that both states and Indigenous peoples could accept… [But] as Erica-Irene Daes essentially said in response to the U.S complaint in 1993 that the Draft Declaration was stretching the boundaries of international law, stretch they could. [29]

    Commitments to developing partnerships with Indigenous peoples - from Rio and Vienna to the International Decade of the World's Indigenous people

    By the early 1990s, governments and the United Nations began to commit to developing partnerships with Indigenous peoples at the international level.

    On 18 December 1990 the General Assembly of the United Nations proclaimed 1993 as the International Year of the World's Indigenous People. The objective of the Year was to strengthen international cooperation for the solution of problems faced by Indigenous peoples in such areas as human rights, the environment, development, education and health. The theme for the Year was 'Indigenous people - a new partnership' and was aimed at the development of a new and equitable relationship between the international community, States and Indigenous peoples based on the participation of Indigenous people in the planning, implementation and evaluation of projects affecting their living conditions and future. [30] The International Year provided a platform for greater international attention to the situation and desires of Indigenous peoples, and for identifying the challenges that remained at the international level.

    Around the same time, the role of Indigenous peoples in addressing environmental and sustainable development issues became increasingly recognised in a variety of international processes. Indigenous issues and the importance of the participation of Indigenous peoples were given prominent attention at the United Nations Conference on Environment and Development held in Rio de Janeiro in 1992. Chapter 26 of the conference's outcome document, titled Agenda 21, recognised the importance of Indigenous peoples having meaningful input in the global environmental agenda. It recommended that Indigenous lands be protected from environmentally unsound practices and from socially and culturally inappropriate activities.

    Chapter 26 recognised the need for Indigenous peoples to maintain greater control over their lands and resources, and for States to adopt laws and policies to preserve customary practices and protect Indigenous property, including ideas and knowledge. It also called for Indigenous peoples' active participation in shaping national laws and policies on the management of resources and other development processes that affect their livelihoods; and for strengthened inter-agency coordination and collaboration with Indigenous peoples to incorporate Indigenous perspectives into program design and delivery.[31]

    Since the Rio Summit a number of legal instruments on the environment have been developed which are relevant to Indigenous peoples. These include the United Nations Framework Convention on Climate Change, the Convention to Combat Desertification, and the establishment of the United Nations Forum on Forests. Perhaps most notably, the Convention on Biological Diversity was adopted in Nairobi in 1992.

    The Convention on Biological Diversity was ratified by Australia in 1993. Its primary aims are the conservation of biological diversity, the sustainable use of biodiversity components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources. The Convention is the only international instrument that provides for the recognition and protection of the role of Indigenous peoples in biological diversity conservation, use and management.

    Article 8 (j) of the Convention requires States parties to respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity; and to promote their wider application and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices. Article 10(c) requires States to protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements. Articles 17(2) and 18(4) encourage the recognition and use of traditional knowledge in the exchange of information, and development of technologies relevant to the conservation and sustainable use of biological diversity.

    At the fourth meeting of parties to the Convention (the Conference of Parties) in 1998, a working group was established to address the implementation of Article 8(j) and related provisions of the Convention (the Article 8(j) Working Group). The working group is open to Indigenous representatives and has the role of providing advice to the Conference of Parties on the application of legal and other forms of protection for traditional knowledge; the development and implementation of a programme of work at the international and national levels; and on measures to strengthen international cooperation for the protection of traditional knowledge.[32]

    The Article 8(j) Working Group has met twice, in March 2000 and February 2002. The recommendations of the Working Group have formed the basis of discussion and decisions at the subsequent meetings of the Conference of Parties to the Convention.[33] At the 5th meeting of the Conference of Parties in Nairobi in May 2000, for example, a work plan was adopted for advancing awareness of the protection of Indigenous Traditional Knowledge and recognition of the role of women in the conservation and sustainable use of natural resources. The work plan seeks to place priority attention on:

    The significantly increased focus over the past decade on Indigenous issues relating to the environment and sustainable development at the international level can also be seen from the Johannesburg Declaration and Plan of Implementation of the World Summit on Sustainable Development. The World Summit, a ten year review of progress from the Rio Summit, was held in South Africa in August / September 2002. The conference documents reaffirm the vital role of Indigenous peoples in sustainable development, [35] and emphasise the need to:

    The Johannesburg documents also acknowledge the important role of Indigenous peoples and their knowledge systems in addressing issues relating to disaster relief, climate change, biological diversity, sustainable tourism development, traditional knowledge, sustainable forest management, mining and resources management and the provision of adequate and appropriate health services.[37]

    Indigenous peoples' rights also received significant attention at the second World Conference on Human Rights, which was held in Vienna in June 1993. The final Declaration and Programme of Action of the conference called for:

    The Vienna Conference also called for 'the renewal and updating of the mandate of the Working Group on Indigenous Populations' upon completion of the drafting of the Declaration on the Rights of Indigenous Peoples that year.[40] It also called on the General Assembly to proclaim an international decade of the world's Indigenous people, including action-orientated programmes to be decided upon in partnership with Indigenous people. The conference recommended that the framework for such a decade should include consideration of the establishment of a permanent forum for Indigenous people in the United Nations system.[41]

    In December 1993 the General Assembly acted upon the recommendation of the Vienna Conference and proclaimed the International Decade of the World's Indigenous People.[42] The Decade is to run from 10 December 1994 to 9 December 2004 and the theme of the Decade is 'Indigenous people: partnership in action'. The General Assembly set the following five, inter-related objectives for the International Decade.[43]

    1) International Cooperation: The strengthening of international cooperation for the solution of problems faced by Indigenous people in such areas as human rights, the environment, development, health, culture and education. This is described by the General Assembly as the main objective.

    2) Education: The education of Indigenous and non-Indigenous societies concerning the situation, cultures, languages, rights and aspirations of Indigenous people. This is described by the General Assembly as a major objective.

    3) Recognition and protection of Indigenous rights: The promotion and protection of the rights of Indigenous people and their empowerment to make choices which enable them to retain their cultural identity while participating in political, economic and social life, with full respect for their cultural values, languages, traditions and forms of social organisation.

    4) Implementing recommendations on Indigenous peoples: The implementation of recommendations pertaining to Indigenous people of all high-level international conferences as well as of all future high-level meetings. In particular, the General Assembly requested that 'priority consideration' be given to the recommendation of the Vienna World Conference on Human Rights for the establishment of a permanent forum for Indigenous people in the United Nations system.

    5) Adoption of international standards on Indigenous rights: The adoption of the draft United Nations declaration on the rights of Indigenous peoples and the further development of international standards, as well as national legislation, for the protection and promotion of the human rights of Indigenous people, including effective means of monitoring and guaranteeing those rights.

    In establishing the International Decade the General Assembly stipulated that:

    The Programme of Activities for the Decade, adopted by the General Assembly in 1995, proposed a substantial list of activities to be conducted within the framework of the Decade. It includes 38 main proposals for activities by UN agencies and a further 19 for Governments, Indigenous organisations and non-government organisations. These include:

    The International Decade provides a framework for the strengthening of activities relating to Indigenous issues across the UN. It is a strong indication of the priority which the international community states it attaches to addressing Indigenous peoples' issues through international cooperation and to strengthening the participation of Indigenous peoples at the international level in issues that affect them.

    Action at the international level has, however, been slow in implementing these commitments and in addressing the objectives of the Decade. Three years of the Decade passed before the General Assembly decided to appoint the United Nations High Commissioner for Human Rights as coordinator for the Decade. [46] The annual reports of the High Commissioner on progress in implementing the programme of activities for the decade also indicate that very little funding has been forthcoming from States or through the Voluntary Fund for the Decade to resource the activities of the Decade. Similarly, very little information has been provided by States as to activities undertaken to implement the International Decade.[47]

    The High Commissioner for Human Rights had been requested to conduct a mid-term report reviewing the implementation of the programme of activities for the Decade. The report was to include the identification of obstacles to the achievement of the goals of the Decade and recommendations for solutions to overcome those obstacles, and to take into account the views of Member States, the specialised agencies, organisations of Indigenous people and other interested bodies.[48]

    The High Commissioner requested information from governments regarding the implementation of programmes for the international decade that might be included in this review in 1999. Only three countries provided responses - Canada, New Zealand and the Russian Federation.[49] The mid-term review that was submitted only provided information about the activities of the United Nations system in meeting the objectives and implementing the programme of the Decade. This was as 'insufficient information was received from Governments, non-governmental organisations (NGOs) and Indigenous organisations for inclusion in the… report'.[50]

    The mid-term review built on the analysis of the Secretary-General of the United Nations in his 1996 review of the existing mechanisms, procedures and programmes within the United Nations concerning Indigenous peoples.[51] That review had been conducted to contribute to the debate on the need or otherwise for a permanent forum within the UN on Indigenous issues. It found that:

    Accordingly the Secretary-General concluded that:

    [O]n the positive side, it may be suggested that the efforts by the United Nations and certain of its organs… have contributed to the generation of widespread public interest in the issue of Indigenous people, renewed national commitment to improving the condition of these peoples, and international initiatives to support these activities…

    [But] on the other hand, there are apparent lacunae and inconsistencies within the United Nations system on these issues. For example, there are no internationally accepted guidelines on the rights of Indigenous peoples… [and] the different United Nations agencies relate to Indigenous peoples in quite distinct ways. Some United Nations meetings, even those dealing directly with Indigenous matters, offer relatively open participation, while others are almost entirely closed off to Indigenous organisations. Above all, there are virtually no mechanisms in the United Nations organisations which give the nominated representative of Indigenous organisations or peoples the opportunity to provide expert advice or take part in decision-making.[56]

    Referring back to the goals of international cooperation and the importance of facilitating Indigenous participation in the activities of the Decade, the review also stated that:

    The fact that there are now a number of Indigenous related programmes and projects being implemented and planned by United Nations agencies only underlines the striking absence of a mechanism to ensure regular exchange of information among the concerned and interested parties - Governments, the United Nations system and Indigenous people - on an ongoing basis… In particular, it might be seen as particularly important, both from a human rights perspective and for cost-effectiveness to establish procedures that help to avoid projects and programmes in Indigenous areas which are unwelcome by the supposed beneficiaries. In this respect it is fitting to recall the commitment of the General Assembly to the principle of full and effective involvement of Indigenous people in the planning, implementation and evaluation of projects affecting them. The information provided by the United Nations agencies does not indicate that adequate procedures are already in place to accommodate the General Assembly's recommendation.[57]

    The High Commissioner's review in 1999 noted that there has been 'an evolution over the last five years in the development of policy guidelines, programme activities, consultation mechanisms, specific funding and staff resources being dedicated to Indigenous peoples issues' in many United Nations agencies and that accordingly, the objectives of the Decade were beginning to be met by a growing number of UN agencies.[58]

    But it also highlighted as ongoing problems for implementation of the Decade 'the limited human resources available and the lack of funding for the activities themselves'.[59] Halfway through the Decade, only a quarter of the United Nations organisations for which information was available had a designated focal point or unit for Indigenous people or for the Decade. Contributions to the Voluntary Fund for the International Decade, established by the General Assembly to fund activities of the Decade, totalled only US$1.1 million for the initial five years of the Decade. Three countries provided more than 70 per cent of those contributions, with Denmark contributing 40 per cent of the total. The review stated the impact of this lack of funding was that 'at the present time, insufficient funds are available to complete the programme approved… for 1999 and no funds are available for the programme for 2000'.[60]

    The problem of financing, however, goes beyond the lack of contributions by States to the Voluntary Fund for the Decade. As the Chairperson of the Working Group on Indigenous Populations, Madame Daes, stated at the 19th session of the Working Group, it also extends to the programming of the UN specialised agencies:

    [T]he International Year and the International Decade of the World's Indigenous People have received appallingly meager financial support; and while United Nations operational bodies and specialised agencies have taken greater heed of the concerns of Indigenous peoples, they still devote less than one-tenth of one percent of their program budgets to activities that benefit Indigenous peoples directly.[61]

    Similarly she noted that despite the International Decade and the activities of the UN agencies, there is no specific commitment or reference to Indigenous peoples in the United Nations Millennium Declaration adopted by the General Assembly in 2000. This Declaration sets out the United Nations vision for the twenty-first century.

    The High Commissioner's mid-term review reflected the feelings of many Indigenous peoples when it stated that:

    The proclamation of the International Decade of the World's Indigenous People has raised high expectations among Indigenous people worldwide. It has set objectives which are ambitious but realistic. The achievement of some of the goals of the Decade - the adoption of a declaration and the establishment of a permanent forum for Indigenous people within the United Nations - are dependent upon the will of Member States and progress in the negotiations… With respect to the other objectives of the Decade and the fulfilment of the broader trust which Indigenous peoples have in the United Nations system, it is necessary to renew the commitment of the international community to contributing to improvements in the lives of Indigenous people.[62]

    Ultimately, the High Commissioner's mid-term review returned to the central issue identified by the Secretary-General's earlier review, namely the proposal for a permanent forum to address the 'striking absence of a mechanism to ensure regular exchange of information' and the participation of Indigenous peoples.

    The review argued that 'implicit in the theme of the Decade, 'Indigenous people: partnership in action'… is the notion that Indigenous people and organisations should have recognised rights of participation in the United Nations decision-making bodies and have a formal or institutional role in international policy-formulation and policy-making in areas affecting their lives'.[63] It lamented that until such a permanent forum was created, Indigenous peoples would continue to participate in the distinct United Nations organisations on quite different bases, with consultations being conducted on an ad hoc basis and with the recommendations arising from such consultations lacking any institutional recognition.

    The mid-term review, along with the report of the Secretary-General in 1996, supported the establishment of a permanent forum on Indigenous issues within the UN as a matter of priority and as a main way of meeting the objectives of the International Decade.

    Indigenous peoples have criticised the mid-term review as not providing any meaningful monitoring of how the objectives of the International Decade have been met. It contains no quantifiable outcomes by which to measure whether the objectives of the Decade were being addressed. It did not provide information about the 'partnership' role of Indigenous peoples in the Decade, nor any information or critique of the often counter-productive and oppositional approach adopted by some governments to meeting the objectives of the Decade.[64]

    To address these deficiencies, Indigenous peoples decided to convene their own summit to review the implementation of the programme and objectives of the International Decade. Accordingly, the Indigenous Peoples' Millennium Conference was convened in Panama City from 7-11 May 2001.

    The Indigenous Peoples' Millennium Conference statement acknowledges the range of activities that have been undertaken within the framework of the Decade, including the substantial activities of Indigenous peoples throughout the Decade.[65] It also identifies four broad set of concerns about lack of progress of the Decade, namely:

    The Conference Statement concludes by noting that 'the theme of a working partnership also seems to be illusive' with consultations conducted by States and UN agencies resulting in little follow up or change. Indigenous peoples are anxious to ensure that the end of the Decade does not pass with the lack of attention that met the mid-point of the Decade. Accordingly the Millennium Conference recommended that:

    As the mid-decade period passes, there is an increased urgency to address the goals and objectives of the Decade. The Indigenous Caucus came to consensus that the UN system should end this Decade with a World Conference on Indigenous Peoples so that the UN system, States and Indigenous Peoples can establish a template for future efforts to address and resolve the critical issues of the new millennium.[67]

    'You have a home at the United Nations' - The creation of the Permanent Forum on Indigenous Issues

    The most concrete and significant achievement of the International Decade has been the establishment of the Permanent Forum on Indigenous Issues by the Economic and Social Council on 28 July 2000.[68] Significantly, it was established as a subsidiary organ of the Council. In practical terms, this places the Permanent Forum at the highest level of the United Nations possible without amendment to the UN Charter.

    As an advisory body to the Economic and Social Council, the Permanent Forum has a wide-ranging role to discuss Indigenous issues that fall within the mandate of the Council. This includes issues relating to economic and social development, culture, the environment, education, health and human rights. Its function is to:

    a) Provide expert advice and recommendations on Indigenous issues to the Council, as well as to programmes, funds and agencies of the United Nations, through the Council;

    b) Raise awareness and promote the integration and coordination of activities relating to Indigenous issues within the United Nations system; and

    c) Prepare and disseminate information on Indigenous issues.[69]

    The Permanent Forum is to report annually to the Council on its activities, at which time it can make any recommendations on Indigenous issues. It is required that the Permanent Forum's report then be distributed to the relevant United Nations organs, funds, programmes and agencies as a means of furthering the dialogue on Indigenous issues within the United Nations system.[70]

    The Permanent Forum met for its inaugural session in New York from 13-24 May 2002. At this early stage there are four main factors about the Permanent Forum that warrant comment in relation to the objectives of the International Decade.

    First is to note the sheer scope of the role of the Permanent Forum and its potential to transform consideration of Indigenous issues at the international level. As Kofi Annan stated to the Permanent Forum during its first session:

    [Y]our Forum has formidable responsibilities. You must determine how best to mobilise the expertise and resources of the United Nations system. You will need to forge new relationships between Indigenous communities and specialised agencies. And you will have to convince governments that they must join these efforts and increase the attention they pay to Indigenous issues.[71]

    The size of the coordination role of the Permanent Forum can be seen by looking at the list of United Nations agencies that either participated in the Inter-Agency Support Group for the Permanent Forum in the lead up to its first session or were referred to in the recommendations of the Permanent Forum's first report. These agencies include the World Intellectual Property Organisation; United Nations Human Nations Human Settlements Programme; United Nations Children's Fund (UNICEF); United Nations Development Programme; United Nations Environment Programme; Office of the United Nations High Commissioner for Refugees; Office of the United Nations High Commissioner for Human Rights; World Trade Organisation; United Nations Educational, Scientific and Cultural Organisation; World Health Organisation; United Nations Population Fund; United Nations Institute for Training and Research; World Bank; Convention on Biological Diversity; Food and Agriculture Organisation; International Labour Office; Global Alliance for Vaccination Initiative; UNAIDS and others.

    It is not the role of the Permanent Forum to identify every aspect of the mandates of each of these and other UN agencies that relate to Indigenous peoples or to identify every programme that is relevant to Indigenous needs. That is clearly the role of each of the UN agencies themselves, preferably through the establishment of a centralised focal point within each agency.

    But it is the Permanent Forum's role to identify linkages, overlaps and gaps between the UN agencies, as well as to examine the processes for Indigenous participation in the activities of the UN agencies and the appropriateness or otherwise of the basis of such engagement.

    The difficulty and size of this task is demonstrated by examining the recommendations that emerged from the first session of the Permanent Forum. One of the most basic conclusions from the first session was to note the lack of information about the activities of the various UN agencies, such as what programmes and policies do the UN agencies have specific to Indigenous peoples? What programmes do they have that are not specific but are generally accessible to Indigenous peoples? How much of their budgets are devoted to Indigenous specific activities? What mechanisms exist for Indigenous participation in setting policies, programmes and priorities? And how are programmes and policies kept under review and monitored?

    To address these preliminary concerns about information on the treatment of Indigenous issues by the United Nations the Permanent Forum recommended to the ECOSOC that:

    As these recommendations demonstrate, the potential of the Permanent Forum is that it will be able to mobilise the entire United Nations system to addressing the circumstances and issues of Indigenous peoples the world over. It is ultimately a powerful monitoring mechanism to hold these agencies accountable for their performance on Indigenous issues.

    The second feature of the Permanent Forum is that it offers unprecedented scope for Indigenous peoples to participate in the programming and policy directions of the agencies of the United Nations. ECOSOC Resolution 2000/22 which establishes the Permanent Forum provides for such participation in two main ways - through the appointment of Indigenous peoples' elected representatives as members of the Forum and by adopting the procedures of the Working Group on Indigenous Populations to facilitate the participation of Indigenous organisations in the Permanent Forum's activities.

    The Permanent Forum is constituted of 16 members. Eight of these are nominated by Governments and elected by the Economic and Social Council, and eight are appointed by the President of the Council following consultations with Indigenous organisations. These eight 'Indigenous nominated' experts are to be selected on the basis of 'the diversity and geographical distribution of the Indigenous people of the world as well as the principles of transparency, representativity and equal opportunity for all Indigenous people, including internal processes, when appropriate, and local Indigenous consultation processes'.[73]

    While there were difficulties with the initial selection processes for the Indigenous nominated members,[74] this process is revolutionary in United Nations terms. It is the first time that appointments to a body of the Economic and Social Council - one of the primary and most significant agencies of the United Nations - have not been solely determined by governments or their representatives. It represents an opening up of the United Nations decision-making process to non-government, Indigenous interests. As Willie Littlechild, an Indigenous nominated member of the Permanent Forum has stated, this process 'is a step in the direction of recognition of our right to self-determination. We shall participate in the Permanent Forum on an equal footing with members appointed by the states. For the first time in history we will be part of the UN family'.[75]

    The resolution establishing the Permanent Forum also provides that 'organisations of Indigenous people may equally participate as observers (at the Permanent Forum) in accordance with the procedures which have been applied in the Working Group on Indigenous Populations of the Sub-commission on the Promotion and Protection of Human Rights'.[76] This is in addition to the regular list of participants, namely States, United Nations bodies and organs, inter-governmental organisations and non-governmental organisations in consultative status with the Council.

    The importance of facilitating such broad participation was noted above in relation to the activities of the Working Group on Indigenous Populations. The practical effect of this approach was quite noticeable at the first session of the Permanent Forum, where the opportunities for governments and Indigenous organisations to contribute to the work of the Forum were equal. Normally, governments have pre-eminence in speaking rights in UN forums. NGOs are usually limited to making contributions during left over time once governments have concluded their discussions, or in the short periods allocated by the chair at the beginning or end of each meeting (usually 5 to 10 minutes of each 3 hour session). If anything, governments played a secondary, though still important, role at the Permanent Forum with the majority of time and discussion coming from Indigenous organisations.

    In a special meeting of the Permanent Forum, the Secretary-General of the United Nations - Kofi Annan - captured the significance of this by stating:

    You have a home at the United Nations. Indeed, you have rights, needs and aspirations that can and must be addressed by the world Organisation. And you have knowledge, vision, value, skills and many other attributes that can and must help us at the United Nations, and indeed all humankind, to achieve our long-sought goals of development and peace… With the inauguration of this Forum, Indigenous issues assume their rightful place - higher on the international agenda than ever before…[77]

    The third feature of the Permanent Forum is that it has the potential to mainstream the Indigenous rights agenda within the United Nations system. Human rights are but one of several mandated areas which the Permanent Forum is to consider. Despite this, they have already begun to occupy a central position in the considerations of the Forum.

    One reason for this is that the Permanent Forum has emerged largely from debate in the human rights field, led by the Working Group on Indigenous Populations and the Commission on Human Rights. Most of the members appointed to the Forum also have significant experience in the human rights field, with most of the Indigenous members having contributed to debates on Indigenous rights at the United Nations over a prolonged period of time. Similarly, as I stated at the outset of this chapter, there is an integral link between Indigenous participation at the international level and the struggle for recognition of Indigenous rights. It is inevitable that the Indigenous rights agenda will be prominent in a forum whose purpose is linked to facilitating Indigenous participation in decision-making processes.

    Most Indigenous speakers at the Permanent Forum's first session argued that each UN agency must adopt a human rights approach to address Indigenous issues. Regardless of whether the discussion related to education and culture, the environment or economic and social development, for example, the key issues that were continually emphasised were Indigenous peoples' participation in decision-making that affects them; self-determination; governance and capacity building; free, prior and informed consent; and recognition of the differential impact on vulnerable groups such as women, children and people with disabilities.

    The difficulty which exists for the Permanent Forum and the UN agencies at this time is that there is still no universal set of principles setting out the rights of Indigenous peoples which could be applied to the activities and programmes of all UN agencies. At present, the extent to which UN agencies take account of Indigenous rights varies enormously. The Permanent Forum joined the chorus of voices calling for the swift adoption of the Draft Declaration on the Rights of Indigenous Peoples within the framework of the International Decade to provide greater consistency in this regard.

    The fourth feature of the Permanent Forum is that the limitations of what it can achieve will primarily be set by the human, technical and financial resources which are made available to it. The issue of resourcing remains the primary obstacle to the success of the Permanent Forum.

    The ECOSOC Resolution establishing the Permanent Forum states that 'the financing of the Permanent Forum shall be provided from within existing resources through the regular budget of the United Nations and its specialised agencies and through such voluntary contributions as may be donated'.[78] Like contributions for the International Decade, voluntary contributions for the Permanent Forum have been extremely limited.

    The governments of Australia and the USA have advocated that the correct interpretation of 'within exiting resources' is within existing Indigenous resources. Given that Indigenous issues are already severely under-resourced within the UN system, this position is unsustainable.

    At this stage, the Permanent Forum is comprised solely of the 16 appointed members who are due to meet once annually. They have no Secretariat and hence no capacity to advance consideration of issues between sessions. The primary recommendation of the Permanent Forum at its first session was for the ECOSOC to address this very issue. It states that the ECOSOC should accept the following decision:

    Draft decision 1: Establishment of a Secretariat

    The Economic and Social Council decides that a Secretariat shall be established as a matter of urgency and that, given the broad mandate of the forum, the secretariat shall be located in New York and be attached to the Secretariat of the Council. The Secretariat will… comprise five professionals and two administrative staff, with due consideration being given to qualified Indigenous persons. The secretariat will assist members of the Permanent Forum to fuflfil their mandate by implementing the approved programme of activities, including organisation of meetings; undertaking research projects and preparing the annual report to the Economic and Social Council; raising awareness and promoting the integration and coordination of activities relating to Indigenous issues within the United Nations system; and preparing and disseminating information on Indigenous issues. These activities are to be funded from the regular budget.[79]

    In July 2002 the ECOSOC responded to this recommendation by requesting the Secretary-General of the United Nations to appoint a Secretariat Unit to the Permanent Forum, attached to the Department of Economic and Social Affairs (DESA) of the UN in New York; and to establish a voluntary fund for the Permanent Forum for the purpose of funding the implementation of recommendations made by the Forum.[80] The ECOSOC has also requested the Secretary-General to submit proposals for the provision of adequate resources for the Permanent Forum to the 57th session of the General Assembly for decision.[81]

    At the time of writing, the issue of resourcing was making its way through the processes of the United Nations General Assembly for decision. It was discussed within the framework of the International Decade by the 3rd Committee of the General Assembly in October 2002 [82] where the Australian Government provided positive support for the establishment of a Secretariat for the Permanent Forum. Notably though the Government is yet to contribute any funding towards this end or towards the implementation of the recommendations of the Forum's first session.

    In December 2002 the 5th committee of the General Assembly, which makes the budgetary decisions, decided to provide US$450,000 in funding to the Permanent Forum from the contingency budget until the regular budget can be decided in the 2004-2005 UN budget biennium cycle. A two person Secretariat for the Permanent Forum is likely to now be operational by February 2003. Unfortunately it appears likely at this stage that the Permanent Forum will be unable to advance the numerous recommendations and activities contained in their first report prior to their second session in May 2003.

    The Permanent Forum has the potential to revolutionise the way that the United Nations engages with Indigenous peoples and addresses their circumstances. Its importance cannot be over-estimated. It is clear, however, that it is a massive undertaking that requires significant technical, human and financial resourcing from the United Nations and governments of the world. Such support has not been forthcoming to date. Until such support is forthcoming it is not possible to argue that the Permanent Forum implements several of the key objectives of the International Decade.

    As Mililani Trask, one of the Indigenous nominated experts to the Forum, stated in her opening remarks at the Forum's first session, there is a danger that the Permanent Forum could become an example of institutionalised racism within the United Nations system if such support is not forthcoming to enable the Forum to undertake its mandate.

    Recognising and protecting the rights of Indigenous peoples - The Special Rapporteur, Durban and the Draft Declaration

    This chapter has outlined an extraordinary variety of achievements in the recognition of Indigenous rights and the participation of Indigenous peoples at the international level over the past thirty years. Despite these achievements, there remains a great distance to be travelled for international law to provide full and non-discriminatory recognition of Indigenous peoples' rights and for the objectives of the International Decade to be met.

    If there were any doubt as to the extent of the recognition still required it can be immediately dispelled by considering one simple fact relating to the process of negotiation on the Declaration on the Rights of Indigenous Peoples as drafted by the Working Group on Indigenous Populations and accepted by the Sub-Commission on the Promotion and Protection of Human Rights. The Draft Declaration has been under consideration by governments in an inter-sessional working group of the Commission on Human Rights for seven years. In this time, governments have adopted just two of the Declaration's 45 Articles.

    While there are a myriad of reasons for this slow progress, there is one fundamental issue that underlies it - the reluctance (or refusal) of governments to recognise the application of the right of self-determination to Indigenous peoples. As Sharon Venne has described it, 'The difficulty for Indigenous peoples has been to obtain the rights which have been applied and accepted as rights of peoples, that is, to add 'Indigenous' to 'Peoples'.' [83] This issue is the reason that we have an International Decade for the World's Indigenous People; a Permanent Forum on Indigenous Issues; and a Working Group on Indigenous Populations. The word 'peoples' is conspicuously absent from all UN processes relating to Indigenous peoples.

    It is worth recalling that the objectives of the International Decade include:

    Since 2000, there have been three main processes which are related to these objectives of the International Decade. They are the establishment of a Special Rapporteur on Indigenous people by the Commission on Human Rights; the Durban World Conference Against Racism; and the ongoing negotiations on the Draft Declaration on the Rights of Indigenous Peoples.

    Concerned at the lack of progress in adopting standards on Indigenous rights and the consequent lack of specific protection of Indigenous peoples, the Commission on Human Rights acted on 24 April 2001 to create the position of Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people.

    The Special Rapporteur has the following functions:

    a) to gather, request, receive and exchange information and communications from all relevant sources, including Governments, Indigenous people themselves and their communities and organisations, on violations of their human rights and fundamental freedoms;

    b) to formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations of the human rights and fundamental freedoms of Indigenous people; and

    c) to work in close relation with other special rapporteurs, special representatives, working groups and independent experts of the Commission on Human Rights and of the Sub-Commission on the Promotion and Protection of Human Rights. [84]

    The Commission requested the Special Rapporteur to particularly pay attention to discrimination against Indigenous women; violations of the human rights and fundamental freedoms of Indigenous children; the recommendations of the WGIP and of the Permanent Forum on Indigenous Issues; and the recommendations of the World Conference Against Racism (2001). The Special Rapporteur, Mr Rodolfo Stavenhagen, is to report annually to the Commission on his activities. Governments are requested to give serious consideration to the possibility of inviting the special rapporteur to visit their countries so as to enable him to fulfil his mandate effectively.

    In introducing the resolution to create the role of Special Rapporteur, Mexico highlighted the need to strengthen the protection of Indigenous peoples and monitor the human rights of specific vulnerable groups. Guatemala stated that Indigenous peoples could not wait until the adoption of the Draft Declaration to have their rights protected.

    Canada, Argentina and Australia argued against the creation of the position of Special Rapporteur by stating that the Permanent Forum and the Draft Declaration were priority issues that would have a major impact on the consideration of any future mechanism or process pertaining to Indigenous issues. Australia expressed the view that:

    until the permanent forum is established, we consider it premature to establish any new mechanisms in this area, such as the Special Rapporteur on the Human Rights of Indigenous Peoples. We see no need for such a mechanism and consider that to establish it would divert valuable time and energy away from the work required to establish the Permanent Forum. [85]

    Ultimately Australia joined with United States of America in supporting the creation of the role of Special Rapporteur:

    with the expectation that the Working Group on Indigenous Populations will focus its next session on how best to hand its work to the Permanent Forum. The WGIP has had a successful history. However with the establishment today of a new Special Rapporteur, the imminent start of the Permanent Forum and the continued work of the Working Group on the Draft Declaration, the US believes the Working Group on Indigenous Populations has fulfilled its mandate. [86]

    The Special Rapporteur submitted his first report to the Commission on Human Rights in April 2002. It provides an overview of the current level of protection of Indigenous peoples' human rights. He notes that there is a 'problem of a "protection gap" between existing human rights legislation and specific situations facing Indigenous people' which is 'of major significance and presents a challenge to international mechanisms for the effective protection of human rights'. [87] The Special Rapporteur anticipates that in his capacity he shall address these issues through two processes - communications and thematic research.

    His first report identifies the following issues as deserving particular attention:

    The Special Rapporteur has indicated that he intends to focus particularly on one of these topics each year, as well as to address immediate violations of human rights brought to his attention through communications processes. In 2002-03, the Special Rapporteur has sought information on two topics: the impact of development projects on the human rights and fundamental freedoms of Indigenous communities, and the human rights issues for Indigenous people in the realm of administration of justice. It is anticipated that his 2003 report will address the first issue and the 2004 report the second issue.

    The establishment of the Special Rapporteur joins the Permanent Forum as one of the most important achievements of the International Decade. Like the Permanent Forum, issues of resourcing will determine the scope of work that can be undertaken by the Rapporteur and the extent to which the potential of the Rapporteur's role is turned into a reality. The limitations of the Special Rapporteur are demonstrated by the fact that he is currently only funded to undertake two country visits each year.

    The advances that have been made during the course of the International Decade and the great challenges that remain for Indigenous peoples are perfectly illustrated by the consideration of Indigenous issues in the Durban Declaration and Programme of Action of the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance. The World Conference was held in Durban South Africa in August-September 2001. The documents of the World Conference demonstrate the positive recognition that Indigenous issues have achieved over the course of the International Decade. But they also reveal the major limitations that remain in the treatment of Indigenous issues. [89]

    On the positive side, the Durban Declaration states unequivocally that the full realisation by Indigenous peoples of their human rights and fundamental freedoms is indispensable to the elimination of racism and that the full participation of Indigenous peoples in society, along with cultural pluralism, is essential for political and social stability.[90] Accordingly, States express determination 'to promote [Indigenous peoples'] full and equal enjoyment of… rights, as well as the benefits of sustainable development, while fully respecting their distinctive characteristics and their own initiatives'. [91]

    The Durban Declaration also acknowledges:

    The Programme of Action of the World Conference, which is intended to detail the practical, action oriented steps which must be taken, places an emphasis on adopting a gendered approach to racism including the adoption of policies and programmes in concert with Indigenous women in order to promote their rights and deal with urgent problems that they face in relation to education, health, economic life and violence.[96]

    It calls on the UN agencies to assign particular priority to and allocate sufficient funding to Indigenous issues within the framework of the International Decade;[97] and calls on States to ensure adequate funding for the Permanent Forum and the Special Rapporteur in order that they can fully undertake their mandates.[98]

    The Programme of Action also calls on States to:

    Notably, in light of the International Decade, the Programme also calls for:

    Despite this positive recognition and recommendations, the World Conference documents also contain numerous negative provisions. The documents tend to make only vague or qualified references to Indigenous rights and contain no recognition of the collective dimension of Indigenous peoples' livelihoods.

    So while the Declaration notes that 'efforts are now being made to secure universal recognition for [Indigenous peoples' rights] in the negotiations on the Draft Declaration',[105] at no stage does it provide any positive recognition that the claims of Indigenous peoples through the Draft Declaration amount to existing rights or that they should be recognised. The closest to this is the Programme's urging States to conclude the negotiations on the declaration as soon as possible.

    While the Declaration affirms that Indigenous peoples 'are free and equal in dignity and rights and should not suffer any discrimination, particularly on the basis of their Indigenous origin and identity' [106] it does so subject to 'the principles of sovereignty and territorial integrity of States'.[107]

    The Declaration also recognises 'the special relationship that Indigenous peoples have with the land as the basis of their spiritual, physical and cultural existence'.[108] But in encouraging States to ensure that Indigenous peoples are able to retain ownership of their lands and of natural resources, limits such recognition to that 'to which they are entitled under domestic law'.[109] This is a regression from the text of the first two world conferences against racism in 1978 and 1983 and potentially in conflict with the international law doctrine of permanent sovereignty over natural resources.[110]

    The documents refer to Indigenous 'peoples' but do so on the following basis:

    We declare that the use of the term 'Indigenous peoples' in the Declaration and Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance is in the context of, and without prejudice to the outcome of, ongoing international negotiations on texts that specifically deal with this issue, and cannot be construed as having any implications as to rights under international law.[111]

    This text provides no acknowledgement of that Indigenous peoples constitute a 'peoples' and consequently no acknowledgement of the application of the right of self-determination. It does not, however, preclude such recognition in the future.

    Indigenous peoples responded to this qualification by noting that Indigenous peoples are the only group of people identified in the World Conference documents as victims of racism to have their identity qualified. As the Indigenous Peoples' Millennium Conference stated:

    We call upon States to recognise that Indigenous peoples are 'peoples' as within the full meaning that attaches to that term under international law. We condemn the continual denial of the recognition of Indigenous peoples as having the rights of all other Peoples. We consider the continued denial of this recognition an act of racial discrimination by the States within the United Nations itself, as this refusal is a distinction based on race or ethnic origin which has the purpose of nullifying or impairing all other human rights of Indigenous Peoples.[112]

    Overall, it cannot be said that the World Conference took advantage of what was described in the preamble of the Durban Declaration as 'a unique opportunity to consider the invaluable contribution of Indigenous peoples… to our societies, as well as the challenges faced by them, including racism and racial discrimination.'

    These inadequacies of the Durban documents in recognising Indigenous rights are particularly noticeable when compared to the outcomes of the various meetings of Indigenous peoples in the lead up to that World Conference, such as:

    Each of these documents shows how great the divide is between recognition by States and the assertion of rights by Indigenous peoples.

    A further disappointment of the Durban World Conference has been the lack-lustre follow up and implementation process of the agreed outcomes by governments and by the United Nations. This has in part been due to controversies on the Durban text on Zionism, the Middle East and slavery issues, which delayed adoption of the text by the General Assembly for a considerable period after the Durban conference had concluded.

    One of the objectives of the International Decade, however, is the implementation of recommendations pertaining to Indigenous people of all high-level international conferences. The commitments in the Durban documents, alongside the recommendation in the Durban Programme of Action for States to act upon the documents prepared by Indigenous peoples in the preparation for the World Conference, provides ample scope for advancing significant aspects of the Indigenous rights agenda.

    One could ask what is the point of having reached consensus in the Durban documents to urge the UN agencies to allocate sufficient funding to Indigenous issues within the framework of the International Decade and for States to ensure adequate funding for the Permanent Forum when there has been no effort to these ends in the eighteen months since the World Conference.

    It is a significant failure by governments and the UN system to have not yet acted in accordance with the commitments of the World Conference Against Racism to address ongoing racism against Indigenous peoples.

    The Durban World Conference documents ultimately defer consideration of controversial issues relating to the recognition of Indigenous rights to the annual sessions of the inter-sessional, open-ended working group on the Draft Declaration of the Commission on Human Rights. As noted above, this working group has adopted just two of the 45 Articles of the Draft Declaration in its first seven years.

    There are two main features to the negotiations at the working group. The first is related to participation and the decision-making process. The working group on