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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.