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Permanent Forum on Indigenous Issues
17 May 2006
Madame Chair, distinguished delegates, I am making this statement on behalf of Australia, New Zealand, and the United States of America.
Madame Chair, Australia, New Zealand, and the United States of America supported the establishment and the work of this Forum. Over its relatively short history, the UN Permanent Forum has contributed to the promotion of issues affecting indigenous peoples. It is serving to bring their concerns into direct engagement with the United Nations. We welcome that, Madame Chair.
Madame Chair, this Forum was one of the main achievements of the first international decade of the world’s indigenous peoples. It is disappointing that another objective of that decade – to elaborate a Declaration on the Rights of Indigenous Peoples – has not been met. It has been impossible to reach a consensus amongst States on a text. The Chair’s ‘final compromise text’, which was annexed to his report to CHR earlier this year (E/CN.4/2006/79) is an improvement on the original Sub Commission text and a possible basis for further consideration. But, it does not enjoy consensus. There is no agreement on most of its crucial provisions, as the Chair himself has acknowledged. It, therefore, remains fundamentally flawed.
Madame Chair, the provisions for articulating self-determination for indigenous peoples in this text, for example, are inconsistent with international human rights law. Indeed, some of its provisions attempt to reinterpret the Covenants. They could be misrepresented as conferring a unilateral right of self-determination (Article 3) and possible secession upon a specific subset of the national populace, thus threatening the political unity, territorial integrity and indeed the security of existing UN Member States. Article 3 in the text, unqualified as it is at present, has the potential to create instability.
The draft text also appears to confer upon a minority, a power of veto over the laws of a democratic legislature (Article 20). While we strongly support the full and active engagement of indigenous peoples in democratic decision-making processes, no government can accept the notion of creating different classes of citizenship. Nor can one group in society have rights that take precedence over those of others. In this context, it is important to be mindful of the Convention on the Elimination of Racial Discrimination.
Madame Chair, the provisions on lands and resources are particularly unworkable and unacceptable. They ignore the contemporary realities in many countries with indigenous populations, by appearing to require the recognition of indigenous rights to lands now lawfully owned by other citizens, both indigenous and non-indigenous (Article 26). Such provisions would be impossible to implement.
Other important provisions in the Chair’s text are potentially discriminatory. It seems to be assumed that the rights of all individuals, which are enshrined in international law, are a secondary consideration in this Declaration. Collective rights do not prevail over the human rights of individuals, as implied in Article 34 of the text. That only confirms that this text it is fundamentally flawed in its most significant provisions.
Madame Chair, any attempt to put this text forward for endorsement in the United Nations would be disingenuous and irresponsible. It lacks consensus support and thus any moves to adopt it by the new Human Rights Council would establish a dangerous precedent. It would also risk creating confusion, ambiguity and endless debate on what the Declaration means.
Endorsement of this text, which many States – even with the best of intentions – could never live up to, would be a gross disservice to indigenous people. And, it would potentially undermine the cause of advancing human rights internationally. Many other countries, representing all regions, have shared their concerns in this regard with our respective governments. States need to pause and reflect very carefully indeed on the very obvious shortcomings in the current text before any action on it could be legitimately contemplated in the United Nations.
Madame Chair, Australia, New Zealand, and the United States of America want a Declaration that can become a tangible and on-going standard of achievement. To achieve that, it must be universally accepted, observed and upheld in order to have political and moral force as a Declaration. None of us want a Declaration that, at its outset, is regarded as artificial, unrealistic, simply rhetorical, and thus ultimately irrelevant. The situation for indigenous people in some countries is very worrying indeed. What is needed is a new standard of achievement that has the potential to make a real difference in their circumstances and one that is an investment and positive force in their futures. Sadly, the current text falls well short of ever achieving that. It would be in effect, Madame Chair, a lost opportunity.
Madame Chair, I thank you.
The statement is available online at
<http://www.australiaun.org/unWeb/content/statements/social/2006.05.17_SOC_Indigenous.pdf> .
22 May 2006
Madame Chair, we would also like to make some further comments on the Draft Declaration. Since the joint statement last week by Australia, New Zealand and the United States of America. I have heard it said in the margins of this meeting that the three States do not want to see a final Declaration on the Rights of Indigenous Peoples.
Nothing could be further from the truth.
For example, anyone who has been present at meetings of the intersessional Working Group over recent years will have observed the extent to which each of the three States have been actively and constructively engaged in the process, including by proposing compromise language, individually, collectively and in partnership with other States that share our concerns and our desire for a meaningful Declaration that is capable of implementation.
We are aware, of course (as we were reminded by Mexico this morning) that a Declaration is an aspirational document and not legally binding. However, Indigenous Peoples still deserve a Declaration that is capable of implementation and that represents a standard against which States are prepared to be judged.
The current Chairman’s text, notwithstanding its strengths, fails these tests. It still has certain fundamental problems (as identified in last week’s joint statement) and, in particular, it lacks consensus support.
It is for these reasons that we believe it would be premature for the Human Rights Council to vote on adoption of the Chair’s text at this stage.
On the other hand, however, we strongly believe (as we said last week) that the Chair’s text provides ‘a possible basis for further consideration’. We believe that, given a period of reflection and further consultation among States, it should be possible to arrive at a modified Chairman’s text that both shares genuine consensus and is capable of implementation.
After all, indigenous peoples deserve more than just empty rhetoric, that is to say a Declaration that lacks consensus and cannot be implemented.
As we said quite unambiguously last week, Australia, New Zealand and the United States want a Declaration and, specifically, we want a Declaration that has the political and moral force that comes from enjoying genuine consensus support.
We believe, Madame Chair, that there are two options or scenarios now confronting the Draft Declaration.
The first is a Declaration that is doomed from the outset because it is adopted prematurely, by simple majority vote (or simply by a majority of those General Assembly members who do not abstain), and that is accompanied by lengthy statements from a significant number of States that either seek to distance themselves from any ownership of the Declaration or, possibly worse still, from States that nominally endorse the Declaration whilst simultaneously reinterpreting it in ways that amount to rewriting and even reversing the ostensible intent and purpose of the Declaration.
A Declaration adopted in this way would be self-defeating, giving indigenous peoples a second rate human rights instrument, forever the subject of frustration, disputation and bitterness – an ‘implementation gap’ (to use the Special Rapporteur’s term) of unprecedented dimensions.
There is, however, another scenario and that is a Declaration adopted by true consensus (rather than simple majority vote) – that is to say, a Declaration from which no State explicitly dissents.
Such a Declaration would have real moral authority – and would be of real value to indigenous peoples. To achieve such a consensus, however, States need more time to resolve their differences – that is, a period of reflection.
We believe, Madame Chair, that such a positive outcome is vastly preferable and in fact entirely possible, providing that we resist the impulse to subject the existing text to a premature vote at the Human Rights Council this year.
This statement is available online at
<http://www.australiaun.org/unWeb/content/statements/social/2006.05.22_SOC_Indigenous_comments.pdf> .
22 May 2006
Madame Chair, I am making this statement on behalf of Australia, New Zealand, and the United States of America.
Australia, New Zealand, and the United States of America note the recent efforts of the Permanent Forum to attempt to define and promote a principle or ‘right’ of free, prior informed consent in relation to indigenous peoples (also referred to as a right of prior informed consent, or informed consent or similar). We note also that other international fora are discussing free, prior and informed consent. These include the Convention on Biological Diversity, the WIPOIGC on Intellectual Property and Genetic Resources, the Working Group on Indigenous Populations, UNESCO, UNCTAD, UNDP and the World Bank.
Australia, New Zealand, and the United States of America note that these issues are complex and are significant to indigenous peoples, particularly in light of the historical experience of many indigenous peoples. Australia, New Zealand, and the United States of America consider that discussions about any such principle or ‘right’ are far from complete. The international workshop on free, prior informed consent sponsored by the Permanent Forum in 2005 highlighted that there are widely different views about the content and application of any such principle amongst states and indigenous peoples, and discussions about it in other international forums (such as WIPO and the CBD) are still ongoing. It is therefore premature to refer to the conclusions of the workshop as reflecting ‘a common understanding of free, prior informed consent’, as stated in the report.
Indeed it is relevant to recall that the recommendations of the workshop are expressed in non-mandatory language, and recognise that the consent process ‘may include the option of withholding consent’, rather than ‘must’. The recommendations also focus on ‘consultation’ and ‘participation’ rather than ‘consent’. Nonetheless Australia, New Zealand, and the United States of America consider that the recommendations are premature and do not reflect ‘common understanding’. Some aspects of the recommendations are also vague in meaning or would be impossible to achieve in most situations, such as ‘equal access to financial, human, and material resources’ for ‘all sides in a free, prior informed consent process’.
It is our firm position that there can be no absolute right of free, prior informed consent that is applicable uniquely to indigenous peoples and that would apply regardless of circumstance. In fact to extend such an overriding right to a specific subset of the national populace would be potentially discriminatory.
It is of course widely accepted that individuals and groups should be consulted about decisions likely to impact on them in particular. This includes the opportunity to participate in the making of such decisions, at the very least through both the formal and informal processes of democratic government, as recognised in the International Covenant on Civil and Political Rights.
The Convention on the Elimination of Racial Discrimination also guarantees that there shall be no discrimination in the exercise of such rights, including in the conduct of public affairs (which includes the exercise of legislative, executive or administrative power). But, as acknowledged by the human rights committee, that does not imply a right to choose the modalities of participation in the conduct of public affairs.
It is an entirely different matter to assert, as has been done in the context of developing the Draft Declaration on the Rights of Indigenous Peoples, that particular sub-groups of citizens have a right of veto (in the form of withholding their consent) over the actions of governments and legislatures. It has been asserted, for example, that the enactment of laws by democratically elected parliaments should be subject to the prior consent or veto of a particular sub-group of the population. And, in addition, that this right should apply to any law, policy, program or decision affecting the group, either directly and specifically or even indirectly by virtue of being part of the total population affected.
Clearly this is not a position that a government, democratically chosen to represent the interests of all its citizens, could accept. Democratic government is about reconciling competing rights and interests.
And indeed that is also why even many human rights (such as the right to freedom of expression or opinion) are not absolutes and why there are general provisions in the key human rights instruments which provide limitations such as for national security and to ensure respect for the rights and freedoms of others.
References have been made (such as in the report of the international workshop sponsored by the Permanent Forum) to various legal or other sources for such a principle of free, prior informed consent. For example, the right of self-determination of all peoples in the human rights covenants, various articles in ILO Convention169 and the WGIP Draft Declaration on the Rights of Indigenous Peoples, certain recommendations and observations of human rights treaty bodies, and instruments under the Convention on Biological Diversity. However, the meaning of the right of self-determination in the two covenants has been the subject of much disagreement in the Working Group on the Draft Declaration on the Rights of Indigenous Peoples. ILO 169 has not been ratified by most states, and the other sources mentioned are still under discussion or are otherwise non-binding. Further discussion about these sources and any ‘right’ of free, prior informed consent – and as to when it might or might not apply - is therefore necessary.
Australia, New Zealand, and the United States of America support efforts to increase indigenous peoples’ participation in decisions that affect them, whether in the form of international processes, such as this Forum itself, or domestic arrangements designed to protect and advance indigenous interests. This applies in particular to such areas as land and resources, culture and heritage, traditional knowledge and intellectual property.
But the fundamental point is that neither indigenous nor non-indigenous peoples enjoy an overarching or exclusive right of free, prior informed consent, regardless of circumstance.
Australia, New Zealand, and the United States of America’s position is that discussions about indigenous participation in decision-making must recognise that different approaches may be necessary in different circumstances, and must balance the rights and interests of all those affected, including the responsibility of governments to act in the interests of the common good.
This statement is available online at
<http://www.australiaun.org/unWeb/content/statements/social/2006.05.22_SOC_Indigenous_consent.pdf> .
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