HREOC Social Justice Report 2002: International developments in the recognition of the rights of Indigenous peoples

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:

• recognition that
  Indigenous peoples and nations are subjects of international law and
  must be included within international law processes;

• recognition of
  Indigenous peoples' special relationship to land and its integral link
  to their beliefs, customs, traditions and cultures and for efforts to
  be taken to maintain or restore that relationship;

• the ratification
  and implementation by States of international human rights treaties
  such as those on genocide, anti-slavery, racial discrimination, civil
  and political, and economic, social and cultural rights; and

• the establishment
  of a working group on Indigenous peoples at the United Nations under
  the Sub-Commission.[12]

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:

• the establishment
  of the International Year and International Decade for the World's Indigenous
  People;

• the establishment
  of the UN Indigenous Fellowship Programme and the Voluntary Fund for
  Indigenous Populations (which has greatly enhanced the capacity of Indigenous
  communities to participate at the international level);

• the establishment
  of the UN Permanent Forum on Indigenous Issues;

• the undertaking
  of a range of studies, reports, working papers, and explanatory notes
  on issues including the protection of Indigenous heritage; Indigenous
  peoples' relationship to land; treaties and agreement making between
  States and Indigenous peoples; Indigenous media; human genetic information;
  and issues of definition of who is 'Indigenous';

• the convening
  of a workshop on Indigenous peoples, mining and human rights; and

• The development
  of strategies on Indigenous peoples in Africa and Asia, and the convening
  of workshops in those regions.

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:

• developing and
  enhancing the capacity of Indigenous communities and the full and effective
  participation of those communities in decision-making related to the
  use of their traditional knowledge;

• research on the
  status and trends regarding the knowledge, innovations and practices
  of Indigenous and local communities;

• the development
  of guidelines for the mechanisms, legislation or other appropriate initiatives
  to ensure the equitable share of benefits arising from the use and application
  of Indigenous peoples' knowledge, innovations and practices;

• processes for
  the exchange and dissemination of information with Indigenous and local
  communities;

• developing guidelines
  and recommendations for the conduct of cultural, environmental and social
  impact assessments regarding developments proposed on sacred sites and
  on lands or waters occupied or used by Indigenous peoples; and

• the development
  of participatory mechanisms for Indigenous and local communities in
  the implementation of the work plan.[34]

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:

• develop policies
  and ways and means to improve access by Indigenous people and their
  communities to economic activities and to increase their employment
  in order to address issues of poverty;

• recognise that
  traditional and direct dependence on renewable resources and ecosystems
  continues to be essential to the cultural, economic and physical well-being
  of Indigenous peoples; and

• provide access
  to agricultural resources, and promote land tenure arrangements that
  recognise and protect Indigenous resource management systems.[36]

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:

• Recognition of
  the inherent dignity and the unique contribution of Indigenous people
  to the development and plurality of society, and a reaffirmation of
  the commitment of the international community to their economic, social
  and cultural well-being and their enjoyment of the fruits of sustainable
  development;[38]

• States to ensure
  the full and free participation of Indigenous people in all aspects
  of society, in particular in matters of concern to them; and

• States to take
  concerted positive steps to ensure respect for all human rights and
  fundamental freedoms of Indigenous people, on the basis of equality
  and non-discrimination, and recognise the value and diversity of their
  distinct identities, cultures and social organisation.[39]

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 objectives
  of the Decade should be assessed by quantifiable outcomes that will
  improve the lives of Indigenous people and that are evaluated halfway
  through the Decade (ie, 1999) and at its end (2004);

• the activities
  and objectives for the Decade be planned and implemented on the basis
  of full consultation and collaboration with Indigenous people; and

• the specialised
  agencies, regional commissions, financial and development institutions
  and other relevant organisations of the United Nations system increase
  their efforts to take into special account the needs of Indigenous people
  in their budgeting and in their programming.[44]

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 establishment
  of an International Day of the World's Indigenous People;

• the creation
  of an Indigenous Fellowship Programme in the office of the High Commissioner
  for Human Rights;

• the establishment
  of focal points for Indigenous issues in all appropriate organisations
  of the United Nations system;

• the making available
  of training and resources to Indigenous peoples, and the development
  of specific Indigenous programmes and policies across the UN agencies;

• examination of
  the possible establishment of a permanent forum on Indigenous issues
  within the United Nations structure;

• the conduct of
  workshops, seminars and specific studies on issues relating to Indigenous
  issues;

• the conduct and
  publishing of research on the socio-economic conditions of Indigenous
  people across the world;

• the establishment
  of national committees for the Decade and the development of national
  action plans for the Decade; and

• educational activities
  at the national and local levels.[45]

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:

• 'Indigenous people
  are largely absent from the meetings of the legislative bodies of the
  United Nations system', [52] in part because very
  few Indigenous organisations enjoyed consultative status with the Economic
  and Social Council which is a pre-requisite for participation in the
  majority of United Nations public meetings;

• there are few
  regular scheduled meetings on Indigenous issues in the United Nations;[53]

• funding for Indigenous
  programmes and projects 'is rarely available from the various United
  Nations bodies' aside from the 2 voluntary funds for assistance and
  participation of Indigenous peoples in the human rights area; [54]
  and

• there is a 'noticeable
  difference in level of activity even among United Nations bodies whose
  mandates have a bearing on Indigenous peoples' concerns'.[55]

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 inability
  of the UN system to undertake the internal organising essential to implement
  the Decade's objectives and programme;

• the lack of adequate
  funding for the Decade;

• the lack of cohesion
  within the United Nations system, which results in different agencies
  addressing Indigenous issues in vastly different ways and levels of
  sophistication. The overall result of this is that it renders it impossible
  for the UN system to implement a strategic plan to address the needs
  of Indigenous peoples; and

• the lack of progress
  on recognising Indigenous rights, particularly through acceptance of
  the principles of the Draft Declaration on the Rights of Indigenous
  Peoples.[66]

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:

• all UN agencies
  be requested to provide information on their activities relating to
  Indigenous peoples to the next session of the Permanent Forum;

• a comprehensive
  questionnaire be prepared with the objective of standardising and coordinating
  the collection of data on Indigenous issues within the UN system;

• a study be prepared
  reviewing the necessary policy, programme and technical issues to be
  addressed for the establishment of an integrated database on Indigenous
  issues;

• consideration
  be given to technical training for Indigenous peoples to access UN data
  systems and to the role of Indigenous and mainstream media in disseminating
  information and education on Indigenous issues;

• a website be
  created for the Permanent Forum to coordinate information about all
  UN activities on Indigenous issues;

• data be disaggregated
  and transmitted to the Permanent Forum on an annual basis on Indigenous
  peoples generally and Indigenous women and children specifically in
  terms of a) programmes and services impacting Indigenous peoples and
  b) fiscal allocations for Indigenous peoples' programmes and services;

• all UN agencies
  transmit to the Permanent Forum on an annual basis copies of all relevant
  data sources, publications and internet services relating to Indigenous
  peoples, as well as of all internal policies and procedures relating
  to Indigenous peoples, noting any limitations on their activities in
  particular states or regions (for example, does the World Health Organisation
  address Indigenous issues in so-called 'first-world' countries or does
  it focus on the situation in more disadvantaged countries?); and

• the UN system
  produce a triennial report on the state of the world's Indigenous peoples,
  including data and issues discussed in a thematic matter in accordance
  with the Permanent Forum's mandate.[72]

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:

• 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;

• The implementation
  of recommendations pertaining to Indigenous people of all high-level
  international conferences as well as of all future high-level meetings;
  and

• 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.

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 impact of
  development projects on the human rights and fundamental freedoms of
  Indigenous communities;

• Evaluation of
  the implementation of recent legislation at the national level related
  to the rights of Indigenous peoples;

• Human rights
  issues for Indigenous people in the realm of administration of justice,
  including, where relevant, the relationship between positive and customary
  (non-written) legal systems;

• Cultural rights
  of Indigenous peoples as reflected in bilingual and intercultural education,
  as well as the preservation and development of their own cultural heritage;

• Human rights
  issues - particularly economic and social rights - regarding Indigenous
  children, especially girls, in different settings, such as migrations,
  trafficking of women and girls, violent conflicts, the informal economy;

• Participation
  of Indigenous peoples in decision-making processes, autonomic arrangements,
  governance and policy-making, with special regard to the full implementation
  of civil and political rights; and

• Old and new forms
  of discrimination against Indigenous people, within a gender perspective,
  in the light of the Declaration and Programme of Action of the World
  Conference against Racism, Racial Discrimination, Xenophobia and Related
  Intolerance, as well as measures and remedies undertaken to combat discrimination
  and implement the human rights and fundamental freedoms of Indigenous
  peoples. [88]

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 'importance
  and necessity' of teaching about the facts and truth of the history,
  causes, nature and consequences of racism, including that resulting
  from colonialism; [92]

• that Indigenous
  peoples have suffered as a consequence of colonialism and that contemporary
  social and economic inequalities are a consequence of this history;[93]

• that Indigenous
  peoples have been victims of discrimination for centuries and there
  is an ongoing need to overcome persistent racism;[94]
  and

• the value and
  diversity of the cultures and heritage of Indigenous peoples.[95]

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:

• work with Indigenous
  peoples to stimulate their access to economic activities and increase
  employment, including through the acquisition of enterprises ands provision
  of training, technical assistance and credit facilities;[99]

• promote better
  knowledge of and respect for Indigenous cultures and heritage;[100]

• promote understanding
  among society at large of the importance of special measures to overcome
  Indigenous disadvantage; and

• consult with Indigenous
  representatives in the process of decision-making concerning policies
  and measures that directly affect them.[101]

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

• the Secretary-General
  of the United Nations conduct an evaluation of the results of the International
  Decade and make recommendations concerning how to mark the end of the
  Decade, including appropriate follow up [102];

• States to conclude
  negotiations on and approve as soon as possible the Draft Declaration
  on the Rights of Indigenous Peoples; [103] and

• States to give
  'full and appropriate consideration to the recommendations produced
  by Indigenous peoples in their own forums on the World Conference.[104]

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:

• The Regional
  Preparatory meeting of the Americas for the World Conference Against
  Racism in Santiago de Chile in December 2000;[113]

• The meeting of
  Indigenous peoples' of Australia, New Zealand, the United States of
  America, Hawaii and Canada in Sydney, February 2001;[114]
  and

• The Indigenous
  Peoples' Millennium Summit convened in Panama City in May 2001.[115]

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
the Draft Declaration is constituted of members of the Commission on Human
Rights. There are 53 States that are elected as members of the Commission
on Human Rights. Only members of the Commission can formally vote in the
proceedings of the Working group on the Draft Declaration. Initially,
only governments not on the Commission, inter-governmental organisations
and ECOSOC accredited NGOs could participate (though not vote) in the
working group meetings in addition to members of the Commission. A special
accreditation process was introduced to enable Indigenous organisations
to participate in the working groups' deliberations.

In the initial sessions
of the working group, Indigenous peoples sought a greater presence in
the meetings and in the decision-making process. At the 1997 session,
it was agreed that the meetings would be divided into formal and informal
sessions. States and Indigenous organisations would have equal status
in the informal sessions; whereas States would have sole decision-making
power in the formal sessions. No issues could be forwarded to the formal
sessions until there was consensus in the informal sessions.[116]

Wrangling over procedure
is a feature of each session of the working group. Nevertheless, it is
increasingly recognised that Indigenous peoples have a legitimate and
important role to play in the negotiations on the Draft Declaration in
the working group. It is quite feasible that had Indigenous peoples been
excluded from such a negotiation role an extremely watered down, and from
an Indigenous perspective entirely unacceptable, version of the Draft
Declaration would have been accepted by States by now. For all the frustration
and anger that attaches to the negotiation process in the working group,
it is important to acknowledge this acceptance of the participation of
Indigenous organisations (albeit a reluctant acceptance by some, and a
partial one).

There remains potential,
however, for States to agree to an altered version of the Draft Declaration
through this process without Indigenous participation. Given the
precedent set by other UN meetings, including the WGIP and the new Permanent
Forum, the special procedures for participation in the working group can
be seen to be obsolete and should be revisited with the view of opening
the meeting up and bringing the procedures into line with the other bodies.

The second feature
of the working group's negotiations is substantive. The central issue
in the negotiations on the Draft Declaration is the unwillingness of States
to accept that Indigenous peoples have an unqualified right to self-determination,
as set out in Article 3 of the Draft Declaration.

Australia has played
a vital role in this process, being one of the most vocal and oppositional
countries during the debates since 1997. Australia's role on the working
group is now enhanced with its recent election to the Commission on Human
Rights providing the Government with voting rights in the decision-making
process.

Given the significance
of the debate on the recognition of Indigenous peoples' right to self-determination,
and the role of the Australian Government in this process, I have devoted
a chapter in this Report solely to reviewing the current state of debate
on this issue. Consequently, it is not discussed further here. While governments
have raised other concerns with the provisions of the Draft Declaration
it is envisaged that they will be able to be resolved once consensus has
been reached on the headline issue of self-determination and the status
of Indigenous peoples as 'peoples'.

There is an increased
sense of urgency for States to adopt the Draft Declaration within the
timeframe of the International Decade. There remain two, possibly three,
sessions of the working group for this to be achieved. At this point it
is difficult to see how this can be achieved when States are unwilling
to accept the text of Article 3 of the Declaration, which adopts common
Article 1 of the international covenants. It can only be hoped that the
oft-repeated commitment of States to work towards the finalisation of
the Declaration within the framework of the International Decade will
result in genuine engagement with the issues and with Indigenous peoples
rather than the outright, inflexible opposition that has characterised
debate in the first seven years of the working group.

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

Despite the clearly
unsatisfactory progress in recognising Indigenous human rights through
the adoption of a universal declaration, it is quite possible that the
final years of the International Decade of the World's Indigenous People
could see the dismantling of some of the machinery now in place within
the United Nations for addressing Indigenous human rights issues. ECOSOC
Resolution 2000/22, which established the Permanent Forum, states:

Stressing
that the establishment of the permanent forum should lead to careful
consideration of the future of the Working Group on Indigenous Populations
of the Subcommission on the Promotion and Protection of Human Rights…
[The Economic and Social Council] decides, once the Permanent
Forum has been established and has held its first annual session, to
review, without prejudging any outcome, all existing mechanisms, procedures
and programmes within the United Nations concerning Indigenous issues,
including the Working Group on Indigenous Populations, with a view to
rationalising activities, avoiding duplication and overlap and promoting
effectiveness.[117]

As was noted earlier,
various nations such as Australia and the United States have indicated
their expectation that the creation of the Special Rapporteur alongside
the Permanent Forum would obviate the need for the continuation of the
Working Group on Indigenous Populations (WGIP). In accordance with this
position Australia has indicated that it will not provide funding to any
of the mechanisms dealing with Indigenous issues in the United Nations
until such 'rationalisation' has occurred. It is notable, however, that
the Australian Government has in fact never provided funding to
Indigenous mechanisms in the UN (although ATSIC has contributed modest
amounts).

In the Third Committee
of the General Assembly in October 2002, the Australian Government representative
stated that:

Australia believed
that all United Nations mechanisms, including those dealing with Indigenous
issues, should be efficient and effective. In that context, his delegation
remained concerned about the clear overlap between various existing
mechanisms dealing with Indigenous issues. At a time when the budget
was tight, Australia believed those mechanisms should be streamlined.[118]

No one would disagree
with the suggestion that all United Nations mechanisms should be efficient
and effective and that they should avoid duplication and overlap. The
lack of coordination of UN mechanisms, which gives rise to the possibility
of such duplication and inefficiency, was one of the primary reasons for
the establishment of the Permanent Forum on Indigenous Issues. What is
contentious about the Government's statement, however, is the suggestion
that there currently exists 'clear overlap' between the various UN mechanisms
dealing with Indigenous issues.

The ECOSOC mandated
review, commenced in September 2002 by the Office of the High Commissioner
for Human Rights,[119] is to be of 'all existing mechanisms,
procedures and programmes within the United Nations concerning Indigenous
issues'. This is akin to the 1996 review by the Secretary-General of the
United Nations referred to earlier. A sample of the extensive number of
relevant mechanisms and agencies that address Indigenous issues is discussed
above in relation to the Permanent Forum.

It can be expected,
however, that in light of the views of governments like Australia and
the USA that a significant focus of discussion about potential duplication
will be on the human rights mechanisms. We can assume from comments expressed
by the Australian Government in various forums that the reference to 'clear
overlap' between mechanisms refers to those procedures that exist in the
human rights field - namely the Special Rapporteur, the Working Group
on Indigenous Populations, the inter-sessional, open-ended working group
on the Draft Declaration, as well as the Permanent Forum. An overview
of the functions of each of these four mechanisms is provided in Table
1 below.

Table
1 - Comparison of functions of UN mechanisms relating to promotion and
protection of the human rights of Indigenous peoples

Function / Mechanism	WGIP	Special Rapporteur	Permanent Forum	CHR Working Group
Review developments in the promotion and protection of Indigenous human rights	•	•
Elaborate human rights standards concerning Indigenous peoples	•
Elaborate a Draft Declaration on the rights of Indigenous peoples, by reference to the WGIP draft				•
Gather information and communications from all sources (inc governments and Indigenous peoples) on human rights violations		•
Formulate recommendations / proposals on measures / activities to prevent and remedy violations of Indigenous peoples human rights	•	•
Provide expert advice and recommendations on Indigenous issues (economic and social development, culture, health, educations, human rights and the environment) to the ECOSOC and UN agencies, funds and programmes			•
Raise awareness / promote the integration and coordination of activities relevant to Indigenous issues within the UN system			•
Act as a coordination point and disseminate information on Indigenous issues			•

The following observations
can be made based on the functions of these mechanisms, as summarised
in this table.[120]

In relation to the
working group on the Draft Declaration, it is clear that its mandate does
not overlap with those of the other mechanisms. It was created for the
sole purpose of elaborating a Draft Declaration on the Rights of Indigenous
Peoples, based on the draft elaborated by the WGIP under its standard
setting function. The functions of the working group on the Draft Declaration
are therefore consequential to those of the WGIP, and not in conflict.
The working group on the Draft Declaration will also cease to exist once
it has approved a Draft Declaration for adoption by the General Assembly.

In relation to the
functions of the Permanent Forum on Indigenous Issues, they have the potential
to overlap with those of the other mechanisms in a residual manner. The
Permanent Forum's primary tasks of coordination of the UN system and advising
the ECOSOC and UN agencies on Indigenous issues will involve the application
of existing standards, including but not limited to those in the field
of human rights. The application of such standards is with the aim of
creating institutional innovation at the UN level, and to ensure transparency
and accountability of UN agencies.

The Permanent Forum's
role is not the elaboration of new standards per se. It is also
not to review human rights issues that exist at the national and local
level or to investigate individual complaints of human rights violations.
These factors clearly differentiate the role and mandate of the Permanent
Forum from those of the Special Rapporteur and the WGIP. They also indicate
that the Permanent Forum, of itself, does not have the capacity to cover
the field on Indigenous human rights issues within the UN.

On initial inspection,
it would appear that there is some level of overlap in the roles of the
WGIP and the Special Rapporteur on Indigenous issues. The Working Group's
role of reviewing developments in the promotion and protection of Indigenous
human rights has broad commonalities with the function of the Special
Rapporteur of gathering information on human rights violations. Both mechanisms
also have the ability to make recommendations, although you would naturally
expect that every UN mechanism will come equipped with a process for following
up an issue of significance that has been identified.

The roles of the
two mechanisms are, however, quite distinct. The significant differences
between the roles of these two mechanisms are demonstrated in the comparison
of working methods in Table 2 below.

Table
2 - Comparison of working methods of WGIP and Special Rapporteur

Method of work / mechanism	WGIP	Special Rapporteur
Request information and conduct research		•
Conduct country visits		•
Receive or initiate formal complaints / communications		•
Provide immediate / short term response to information about human rights violations		•
Convene annual meetings attended by Indigenous organisations	•
Make recommendations to Sub-Commission or CHR on conduct of further research or studies	•	•

The role of the WGIP
is to study and review developments pertaining to the promotion and protection
of human rights, and to develop standards based on such review. By comparison,
the Special Rapporteur can investigate human rights complaints and seek
their resolution. This is a role that the Working Group has never had.
Indeed, as Alberto Saldamando notes, 'Many of us who have attended the
WGIP have grown accustomed to its excellent Chairwoman interrupting oral
interventions, warning Indigenous speakers that the WGIP cannot address
their specific case of human rights violations'.[121]

The Special Rapporteur's
mandate provides a specific complaint mechanism for Indigenous peoples
where one has not existed previously. As the Special Rapporteur notes
in his inaugural report, issues of duplication are more likely to arise
with the complaints / communications procedures under the various human
rights treaties and other thematic special rapporteurs of the Commission
on Human Rights.[122] The Rapporteur's functions, however,
require him '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' in this regard.

The Special Rapporteur's
mandate allows him to respond to allegations of violations of Indigenous
peoples' human rights through investigating complaints and conducting
country visits (again, something that the Working Group cannot do). Recommendations
on the steps necessary to remedy violations of rights can also be made
to the country or to the Commission on Human Rights for follow up - this
is also a significantly stronger process than those at the disposal of
the Working Group for addressing violations.

The Special Rapporteur
also has potential benefits over the human rights treaty committees, aside
from the requirement for the country alleged to have violated Indigenous
rights to be a party to the relevant treaty and having recognised the
competence of the committee to hear communications. Unlike the human rights
treaty committees, such complaints do not necessarily have to be individual
complaints and may relate to broader systemic issues being faced by 'communities,
specific groups or entire peoples' [123] in a country.

Another main area
of difference between the Special Rapporteur and the WGIP is the ability
of the Special Rapporteur to request information and conduct research
of his own volition. As indicated, in his first report the Special Rapporteur
has already identified a range of issues requiring further study due to
his concern at their potentially serious impact on Indigenous human rights.
The WGIP can, through reviewing developments, make recommendations to
the Sub-Commission for further research or studies to be completed. But
such recommendations require approval of the Sub-Commission and the appointment
of a member of the Working Group or an independent expert to conduct the
research. This provides a safeguard to ensure that the WGIP does not initiate
research that duplicates the work of the Special Rapporteur.

There are two features
of the Working Group's functions and method of work that are distinct
from those of the Special Rapporteur. Of prime significance to the recognition
of Indigenous rights is the openness and accessibility of the WGIP to
Indigenous participation. The significance of this feature of the Working
Group was discussed earlier in this chapter. It can never be matched by
the Special Rapporteur. It would be an immeasurable loss for the cause
of Indigenous rights to lose this access and visibility within the United
Nations system.

Related to this is
the distinct contribution of the Working Group through its standard setting
role. The capacity of the Working Group to facilitate widespread Indigenous
participation has been a vital factor in the successful elaboration of
standards by the Working Group under this function.

Overall, there are
significant differences and distinct advantages to the roles of both the
Working Group and the Special Rapporteur. Both mechanisms are necessary
for the adequate protection of Indigenous rights at the international
level. The Australian Government's suggestion that there is a 'clear overlap'
in functions does not withstand scrutiny.

Each of the mechanisms
- the Working Group, Permanent Forum and Special Rapporteur - has also
made clear that they are concerned to ensure that there is in fact no
duplication of work between them. Each has addressed this issue and made
recommendations to maximise coordination and consultation between them
in their most recent reports.[124]

It is also notable
that on 14 August 2002, the Sub-Commission (the parent body of the Working
Group on Indigenous Populations) adopted resolution 2002/17 which:

• reaffirmed the
  'urgent need to recognise, promote and protect more effectively the
  rights of Indigenous peoples';

• noted that the
  mandates of the WGIP, Permanent Forum and Special Rapporteur 'are complementary
  and do not give rise to duplication';

• expressed 'its
  full support for the continuing need and therefore for the continuation
  of' the WGIP; and

• recommended that
  the Commission on Human Rights, at its next session in March-April 2003,
  adopt a decision supporting the continuation of the WGIP and noting
  its complementarity with the other mechanisms.[125]

In my view, there
are two further reasons why the human rights mechanisms should not be
'rationalised' by discontinuing the Working Group. Each indicates that
such a decision would be premature.

First, as previously
noted, there is currently a crisis in the UN human rights mechanisms dealing
with Indigenous issues because they are under-resourced. It is a great
irony, perhaps even offence, that mechanisms as seriously under-funded
as the Indigenous mechanisms in the UN are to be reviewed in order to
be 'streamlined'. This under-resourcing is most notable in relation to
the Permanent Forum and Special Rapporteur. Put simply, these mechanisms
have not as yet been provided with sufficient resources - human, technical
and financial - to ensure that they can appropriately acquit their mandates
and be fully operational. It would be disingenuous to abolish an established,
functioning mechanism (like the WGIP) when the mechanisms which theoretically
would take its place do not have full operational capacity (although I
have argued that they in fact fulfill a different role in any event).

Second, any perception
that the activities of the Working Group have stalled or run their course
has to be considered in light of the progress of governments in considering
the Draft Declaration. Earlier in the chapter I quoted text from the Vienna
World Conference in 1993 which recommended that the Working Group's mandate
be updated upon completion of the Draft Declaration. Ideally, such a reformed
role would provide the Working Group with some sort of oversight or review
mechanism on the implementation of the Draft Declaration. This is in fact
the operational structure of the Working Group on Minorities, established
by the ECOSOC in 1995.[126]

The Working Group
on Minorities has been entrusted with the task of promoting the rights
as set out in the Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities [127]
and in particular to:

• review the promotion
  and practical realisation of the Declaration;

• examine possible
  solutions to problems involving minorities, including the promotion
  of mutual understanding between and among minorities and Governments;
  and

• recommend further
  measures, as appropriate, for the promotion and protection of the rights
  of persons belonging to national or ethnic, religious and linguistic
  minorities.[128]

While the recent
activities of the Working Group on Indigenous Populations indicate that
it remains a vibrant mechanism and that it has not exhausted its standard
setting role, the example of the Minorities working group indicates the
potential for re-invigorating and strengthening further the protection
of Indigenous human rights at the international level through the Working
Group. The main obstacle to such strengthened protection is not any inherent
factor in the Working Group's structure or mandate, it is the tardiness
and inflexibility of States and their failure to finalise negotiations
and approve a Draft Declaration on the Rights of Indigenous Peoples.

Conclusion
and recommendations - Meeting the objectives of the International Decade

At the time of writing,
there were still more than two years remaining in the International Decade
for the World's Indigenous People. There have been some significant achievements
in the Decade to date, most importantly the establishment of the Permanent
Forum on Indigenous Issues and the appointment of a Special Rapporteur
on the situation and fundamental freedoms of Indigenous people. These
mechanisms, however, continue to face serious issues relating to their
capacity and budget.

There remains much
work to be undertaken in order to meet the objectives of the International
Decade. Indigenous peoples remain greatly concerned at the overall lack
of achievement during the Decade to date and at the fragile status of
those measures that have been realised.

This chapter is intended
to contribute to an understanding in Australia of what has been achieved
so far in the International Decade, what remains to be done, and what
is at stake. It is written with an appreciation that the Australian Government
plays an active and vital role at the United Nations on issues related
to the protection and promotion of Indigenous human rights. For this reason,
and in accordance with my statutory obligations, I conclude this chapter
with the following recommendations to the federal Government.

Recommendations That, in accordance with the objectives of the International Decade of the World's Indigenous People and the Programme of Activities for the International Decade, the Federal Government: 1) Continue to support the provision of adequate resourcing from the United Nation's Regular Budget to the Permanent Forum on Indigenous Issues. 2) Contribute to the Voluntary Fund for the Permanent Forum [129] in order to fund, or partially fund, at least one recommended activity from the Permanent Forum's first report. The Aboriginal and Torres Strait Islander Commission should match the contribution of the Government to the Voluntary Fund. 3) In recognition of the importance of the Working Group's ongoing role in facilitating the elaboration of standards on Indigenous human rights, support the continued existence of the Working Group on Indigenous Populations and seek to strengthen the mandate of the Working Group by providing it with an oversight role on the Declaration on the Rights of Indigenous Peoples once it is finalised by the Inter-sessional ad-hoc working group of the Commission on Human Rights on the Draft Declaration and approved by the General Assembly.

---

1
Venne, S, Our elders understand our rights: Evolving international
law regarding Indigenous rights, Theytus Books Ltd, Penticton, British
Columbia 1998, pi.

2
Marks, G, 'Sovereign states vs peoples: Indigenous rights and the origins
of international law' (2000) 5(2) AILR 1, 3. For an overview of international
law developments as they relate to Indigenous peoples see Havemann, P,
Chronology 1: Euro-American Law of Nations and Indigenous Peoples,
and Chronology 2: Twentieth Century Public International Law and Indigenous
Peoples, in Havemann, P (Ed.), Indigenous peoples' rights in Australia,
Canada and New Zealand, Oxford University Press, Auckland, 1999.

3
Note: One of the key issues considered in this chapter relates to the
collective rights of Indigenous peoples. As a matter of practice, this
text will refer to Indigenous peoples as 'peoples' unless reference is
being made to a particular document or title which uses a different phrase
such as 'populations', 'people' or 'Indigenous issues'.

4
Bolivia, for example, had proposed at the third session of the General
Assembly in 1948 the establishment of a sub-commission to study the 'social
problems' of Indigenous peoples. This proposal was quickly transformed
into a proposal for a study into the situation of Indigenous populations.
It was ultimately adopted as a resolution, the sole outcome of which was
'the eradication of the chewing of coca leaf in Bolivia and Peru': Cobo,
J M, Study of the problem of discrimination against Indigenous populations:
Volume V, Conclusions, Proposals and Recommendations, United Nations
Geneva 1987, UN Doc: E/CN.4/Sub.2/1986/7, para 6.

5
Venne, S, op cit, pp30-34.

6
ibid, p33.

7
Note that ILO Convention 107 remains in force today in 19 countries that
have ratified it but who have not subsequently ratified ILO Convention
169.

8
ILO Convention 107, Article 11. For a discussion of the Convention see
Lâm, M, At the edge of the State: Indigenous peoples and self-determination,
op cit, p42.

9
For the history of this recommendation see Cobo, op cit, para 6.

10
ibid, para 7.

11
UN Doc: E/CN.4/Sub.2/1984/SR.32, para 48.

12
International Indian Treaty Council, 'International NGO Conference on
Discrimination against Indigenous Populations in the Americas - 1977,
September 20-23' (1977) 1(7) Treaty Council News 1, pp22-27. See
also doCip, The documentation of the United Nations Working Group on
Indigenous Peoples, Geneva, 1982 to 2000, CD-Rom, doCip Geneva 2001.

13
Lâm, M, At the edge of the State: Indigenous peoples and self-determination,
Transnational Publishers, New York, 2000, p38.

14
Report of the International NGO conference on Indigenous Peoples and
the land, Geneva 15-18 September 1981, p10, reproduced in doCip, op
cit.

15
Economic and Social Council Resolution 1982/34, 7 May 1982.

16
Working Group on Indigenous Populations, Report on 20th session,
UN Doc: E/CN.4/Sub.2/2002/24, 8 August 2002, para 3.

17
Daes, E, The Working Group on Indigenous Populations: Achievements
at the United Nations system and a vision for the future, Unpublished
Working Paper presented at 20th session of the Working Group on Indigenous
Populations, Geneva, July 2002, pp3-4.

18
Stavenhagen, R, Report of the Special Rapporteur on the situation of
human rights and fundamental freedoms of Indigenous people, Commission
on Human Rights, UN Doc: E/CN.4/2002/97, 4 February 2002, para 7.

19
The working group is 'intersessional' as it meets between the annual sessions
of the Commission on Human Rights and 'open-ended' as governments not
on the Commission (which is comprised of 53 governments), as well as ECOSOC
accredited NGOs, inter-governmental organisations and Indigenous organisations
can participate in the meetings.

20
Office of the High Commissioner for Human Rights, Fact sheet 9 (rev.1):
The rights of Indigenous peoples, United Nations, Geneva 1997,
www.unhchr.ch/html/menu6/2/fs9.htm,
accessed 16 September 2002. See also Pritchard, S, Setting International
Standards: An Analysis of the United Nations Declaration on the Rights
of Indigenous Peoples and the first six sessions of the Commission on
Human Rights Working Group, ATSIC, Canberra, 2001.

21
Though note, the tripartite structure of the ILO between employer organisations,
employee organisations and States did not allow for any direct involvement
of Indigenous peoples in the negotiation of ILO Convention 169.

22
See the discussion of this in chapter 2 of this report. '

23
For an overview of the Human Rights Committee's jurisprudence on Article
27 see Jonas, W, The recognition of distinct cultural rights in international
law, Speech, Lanzhou China 17 June 2000, Available online at: www.humanrights.gov.au/speeches/social_justice/recognition_of_cultural_rights.html.
See also the following recent concluding observations of the Committee:
Human Rights Committee (HRC), Concluding observations on Venezuela, UN
Doc: CCPR/CO/71/VEN, 26/4/2001, para 28; HRC, Concluding observations
on Guatamala, UN Doc: CCPR/CO/72/GTM, 27/8/2001, para 29.

24
Committee on the Elimination of Racial Discrimination, General Recommendation
XXIII - Indigenous Peoples, UN Doc CERD/C/51/Misc.13/Rev.4, 18 August
1997, para 4.

25
See for example, Committee on the Elimination of Racial Discrimination
(CERD), Decision 2(54) on Australia - Concluding observations / comments,
UN Doc: CERD/C/54/Misc.40/Rev.2, 19/3/1999; CERD, Concluding observations
- Australia, UN Doc: CERD/C/304/Add.101, 19/4/2000.

26
Working Group on Indigenous Populations, Report on 20th session, op
cit, paras 19, 54.

27
ibid, paras 77, 79.

28
ibid, paras 96-98.

29
Lâm, M, op cit, p77.

30
Office of the High Commissioner for Human Rights, Fact sheet 9 (rev.1):
The rights of Indigenous peoples, op cit.

31
For an overview of the involvement of Indigenous peoples in global environmental
processes and the Rio Summit see Carino, J, 'Global environmental processes'
in Netherlands Centre for Indigenous Peoples (ed), Final report - Indigenous
Peoples' Millennium Conference, 7-11 May 2001 Panama City, NCIV, Amsterdam
2001, pp11-14.

32
For an overview of the Article 8(j) Committee and Indigenous peoples'
participation in processes under the Convention on Biological Diversity
see www.biodiv.org/programmes/socio-eco/traditional/; and Permanent Forum
on Indigenous Issues, Information received from the United Nations
System - The Convention on Biological Diversity and Indigenous Peoples,
UN Doc: E/CN.19/2002/2/Add.11, 9 April 2002.

33
For the reports of the Article 8(j) Working Group see UN Doc: UNEP/CBD/COP/5/5
and UN

34
Note also the related work of the World Intellectual Property Organisation
on traditional knowledge, benefit sharing, genetic resources and intellectual
property: Åhrén, M, 'An introduction to the WIPO Intergovernmental
Committee on Intellectual Property, Genetic Resources, Traditional Knowledge
and Expressions of Folklore' (2002) 1 Indigenous Affairs 64; Permanent
Forum on Indigenous Issues, Information received from the United Nations
system - World Intellectual Property Organisation, UN Doc: E/CN.19/2002/2/Add.1.

35
Johannesburg Declaration on Sustainable Development of the World Summit
on Sustainable Development, 4 September 2002, para 25. Available online
at: www.johannesburgsummit.org/html/documents/summit_docs/1009wssd_pol_declaration.htm.

36
World Summit on Sustainable Development Plan of Implementation,
23 September 2002, para 6. Available online at: www.johannesburgsummit.org/html/documents/summit_docs/2309_planfinal.htm.Doc:
UNEP/CBD/COP/6/7, available online at: www.biodiv.org.

37
ibid, paras 35, 36, 38, 40, 42, 43, 44, 45, 47, 53, 57, 58 and
103.

38
Vienna Declaration and Programme of Action adopted at the World Conference
on Human Rights, UN Doc: A/CONF.157/23, 12 July 1993, Section I, para
20.

39
ibid.

40
ibid, Section II(B)2, paras 28-29.

41
ibid, Section II(B)2, para 32.

42
General Assembly, Resolution 48/163, 21 December 1993.

43
United Nations General Assembly, Resolution 50/157, 21 December 1995,
Annex: Programme of activities for the International Decade of the
World's Indigenous People, paras 1-6; United Nations General Assembly,
Resolution 48/163, 21 December 1993.

44
ibid.

45
See further: United Nations General Assembly, Resolution 50/157,
21 December 1995, Annex: Programme of activities for the International
Decade of the World's Indigenous People, paras 8 - 65.

46
General Assembly Resolution 52/108, 12 December 1997.

47
See the various reports of the High Commissioner for Human Rights on Implementation
of the programme of activities for the International Decade of the World's
Indigenous People, such as: UN Docs: A/57/395 (11 September 2002); E/CN.4/2001/84;
E/CN.4/2000/85; E/CN.4/1999/81; and E/CN.4/1998/107.

48
Commission on Human Rights Resolution 1999/51, 27 April 1999.

49
See UN Doc: E/CN.4/2000/85.

50
United Nations High Commissioner for Human Rights, Programme of activities
of the International Decade of the World's Indigenous People - Report
of the Secretary-General, UN Doc: A/54/487, 21 October 1999, para
2. See also: UN Doc A/54/487/Add.1, 21 October 1999.

51
Report of the Secretary-General on the review of the existing mechanisms,
procedures and programmes within the United Nations concerning Indigenous
people, UN Doc: A/51/493, 14 October 1996.

52
ibid, para 37.

53
ibid, para 40.

54
ibid, para 108.

55
ibid, para 161.

56
ibid, paras 164, 165.

57
ibid, para 166.

58
United Nations High Commissioner for Human Rights, Programme of activities
of the International Decade of the World's Indigenous People - Report
of the Secretary-General, UN Doc: A/54/487, 21 October 1999, paras
6 and 7.

59
ibid, para 16.

60
ibid.

61
Daes, E, Statement to the 19th session of the Working Group on Indigenous
Populations, July 2001. Emphasis added.

62
ibid, para 17.

63
ibid, para 11.

64
See the critique of the mid-term review in Indigenous Peoples' Millennium
Conference review of the UN Decade of the World's Indigenous People, Netherlands
Centre for Indigenous Peoples (editor), Final report - Indigenous Peoples'
Millennium Conference, 7-11 May 2001 Panama City, NCIV, Amsterdam
2001. The review of the Decade is available online at: www.nciv.net/engels/Reviewmiliani.htm.

65
ibid, pp58-61.

66
ibid, pp58-60.

67
ibid, p61.

68
Economic and Social Council Resolution 2000/22, 28 July 2000.

69
ibid, para 2.

70
ibid, para 5.

71
United Nations Secretary-General (Kofi Annan), 'You have a home at the
United Nations', Speech to Permanent Forum on Indigenous Issues, 24 May
2002, p1.

72
Permanent Forum on Indigenous Issues, Report of the First session of
the Permanent Forum on Indigenous Issues, UN Doc: E/2002/42, Sup.43,
1 June 2002, pp4-6.

73
ECOSOC Resolution 2000/22, 28 July 2000, para 1.

74
See for example: Indigenous Peoples' Millennium Conference, Resolution
on the Permanent Forum, op cit.

75
Quoted in García-Alix, L, 'Editorial' in (2002) 1 Indigenous
Affairs 4, p4.

76
ECOSOC Resolution 2000/22, 28 July 2000, para 1.

77
Annan, K, op cit, p1.

78
ECOSOC Resolution 2000/22, op cit, para 6.

79
Permanent Forum on Indigenous Issues, Report of the First session of
the Permanent Forum on Indigenous Issues, UN Doc: E/2002/42, Sup.43,
p2.

80
ECOSOC Resolution E/2002/L.16, 25 July 2002.

81
UN Docs: E/2002/L.32 and E/2002/L.33, 24 July 2002.

82
See United Nations General Assembly, Third committee delegates say
completion of draft on Indigenous rights is critical by 2004, as discussion
of Indigenous people concludes, media release GA/SHC/3704, 21 October
2002.

83
Venne, S, op cit, p96.

84
Commission on Human Rights Resolution 2001/57, 24 April 2001.

85
Australian intervention, Commission on Human Rights, 24 April 2001.

86
Intervention by the United States of America, Commission on Human Rights,
24 April 2001.

87
Stavenhagen, R, Report of the Special Rapporteur on the situation of
human rights and fundamental freedoms of Indigenous people, op cit,
para 102.

88
ibid, para 111.

89
For an overview of the conference process see Dick, D, 'The United Nations
World Conference Against Racism' (2001) 5(13) Indigenous Law Bulletin
5.

90
Durban Declaration of the World Conference Against Racism, para
40.

91
ibid, para 41.

92
ibid, paras 98-99.

93
ibid, para 14.

94
ibid, para 30.

95
ibid, para 40.

96
Durban Programme of Action of the World Conference Against Racism,
para 18.

97
ibid, para 209.

98
ibid, paras 204, 205.

99
ibid, paras 16, 17.

100
ibid, para 15.

101
ibid, para 22.

102
ibid, para 203.

103
ibid, para 206.

104
ibid, para 21.

105
Durban Declaration of the World Conference Against Racism, para
42.

106
ibid, para 39.

107
ibid, para 23.

108
ibid, para 43.

109
ibid.

110
For a discussion of this concept see Daes, E, Working paper on Indigenous
peoples' permanent sovereignty over natural resources, Un Doc: E/CN.4/Sub.2/2002/23,
29 July 2002.

111
Durban Declaration of the World Conference Against Racism, para
24.

112
Statement on the World Conference Against Racism of the Indigenous
Peoples' Millennium Conference in Netherlands Centre for Indigenous
Peoples, op cit, p51.

113
Regional Conference of the Americas for the World Conference Against
Racism - Santiago, Chile, 5-7 December 2000, UN Doc: A/CONF.189/PC.2/7,
24 April 2001. This is in fact a meeting of States, but included significant
Indigenous participation and support for Indigenous rights.

114
UN Doc: A/CONF.189/PC.2/Misc.5, available online at: http://.racismconference.com.

115
Netherlands Centre for Indigenous Peoples, op cit.

116
Lâm, M, op cit, pp70-71.

117
ECOSOC Resolution 2000/22, preamble and para 8.

118
United Nations General Assembly, Third committee delegates say completion
of draft on Indigenous rights is critical by 2004, as discussion of Indigenous
people concludes, media release GA/SHC/3704, 21 October 2002, p5.

119
Note: Australia, Canada and New Zealand have requested that the review
not be conducted by the High Commissioner's Office but by the UN Department
of Internal Audit in New York.

120
Note: the table is provided for ease of reference. All comments are based
on an analysis of the mandates for each mechanism as set out in resolutions
of the Sub-Commission, Commission on Human Rights, and ECOSOC.

121
Saldamando, A, 'The United Nations Special Rapporteur on Indigenous Human
Rights' (2002) 1 Indigenous Affairs 32, p33.

122
Stavenhagen, R, op cit, paras 110-112.

123
ibid, para 111.

124
Recommendation B.3 (iii) of the Permanent Forum's first report recommends
to the ECOSOC that a technical seminar be organised with the members of
the Permanent Forum, the members of the WGIP and the Special Rappporteur
'in order to ensure that these UN bodies can efficiently interface in
their undertaking and to avoid duplication': Permanent Forum on Indigenous
Issues, Report of the First session of the Permanent Forum on Indigenous
Issues, op cit, p7; Working Group on Indigenous Populations, Report
on 20th session, op cit, paras 34-40, 82-86; Stavenhagen, R, op
cit, paras 110-112.

125
Sub-Commission on the Protection and Promotion of Human Rights, Resolution
2002/17, 14 August 2002.

126
Economic and Social Council resolution 1995/31, 25 July 1995

127
General Assembly Resolution 47/135, 18 December 1992.

128
For information about the Working Group on Minorities see further the
United Nations Guide for Minorities at: http://www.unhchr.ch/html/racism/01-minoritiesguide.html.

129
At the time of writing the ECOSOC had requested the Secretary-General
of the United Nations to establish such a fund: UN Doc: E/2202/L.16.

19
March 2003.