Editors --- "UN Commission on Human Rights: Working Group on the Draft Declaration on the Rights of Indigenous Peoples - Digest" [2006] AUIndigLawRpr 21; (2006) 10(1) Australian Indigenous Law Reporter 115

• REPORT OF THE UN WORKING GROUP ON THE DRAFT DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES
• Summary
• I. Introduction
• II. Opening of the Session
• III. Organization of Work
• IV. Summary of Discussions
• V. Conclusion

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REPORT OF THE UN WORKING GROUP ON THE DRAFT DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES

62nd Session of the Commission on Human Rights

UN Working Group on the Draft Declaration on the Rights of Indigenous Peoples

E/CN.4/2006/79

Summary

The eleventh session of the working group on the draft United Nations declaration on the rights of indigenous peoples was held from 5 to 16 December 2005 and from 30 January to 3 February 2006. The present report provides a summary of these meetings. The revised Chairman’s summary and proposal on the draft declaration is contained in Annex I of the present report.

I. Introduction

1. By resolution 1995/32 of 3 March 1995, the Commission on Human Rights decided to establish an open-ended inter-sessional working group of the Commission on Human Rights with the sole purpose of elaborating a draft declaration, considering the draft contained in the annex to resolution 1994/45 of 26 August 1994 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (now the Sub-Commission on the Promotion and Protection of Human Rights) entitled ‘Draft United Nations declaration on the rights of indigenous peoples’ for consideration and adoption by the General Assembly within the International Decade of the World’s Indigenous People. This decision was endorsed by the Economic and Social Council in its resolution 1995/32 of 25 July 1995. In its resolution 2005/50, the Commission decided to approve a further session of the working group so that it could complete its work.

II. Opening of the Session

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4. The representative of Mexico introduced the report on the Pátzcuaro (Michoacán, Mexico) workshop (E/CN.4/2005/WG.15/CRP.1) organized by the Mexican Government and the Office of the High Commissioner on Human Rights, which was held from 26 to 30 September 2005. The workshop, he said, was not a negotiating exercise aimed either at replacing the working group or at creating a parallel forum. Its main objective was to assist in an informal manner in the discussions on the major issues of the draft declaration, namely, self-determination, lands, territories and resources, and general provisions. About 90 representatives of governments, specialists from the main indigenous regions of the world, non-governmental organizations, as well as scholars and the Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous peoples, participated. The workshop provided an opportunity for a frank and sincere exchange of different views that contributed positively to a better understanding of the issues and provided ideas of how to narrow positions for achieving a strong declaration on the rights of indigenous peoples.

5. An indigenous representative reported on a meeting of indigenous experts held in Montreal on 10-13 August 2005 (report not available). This meeting was aimed at preparing discussions for the 11th session of the working group and brought together about 30 indigenous peoples’ representatives from all regions. The participants addressed the crucial issues of the indigenous right to self-determination, lands, territories and resources, and general provisions. In relation to self-determination, representatives affirmed their support for the overwhelming ‘emerging consensus’ indigenous proposal. In regard to lands, territories and resources, they emphasized the fundamental right to restitution. Finally, their discussion on general provisions stressed the importance of indigenous peoples’ collective human rights being affirmed in the declaration and to safeguard against the undermining of such distinct rights by State proposals.

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7. In his opening comments, the Chairperson-Rapporteur said that the time for general comments was over. Time had come for concrete solutions based on texts. He underlined that there should be clear signs of progress, as the first decade for indigenous peoples – which was the initial timeframe for the adoption of the declaration – had come to an end. He therefore strongly recommended that all delegations be flexible and conciliatory because there was a need to show progress to the next Commission on Human Rights, and the measure for such progress was to reach agreement on the largest number of articles and, if possible, on the whole declaration.

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III. Organization of Work

9. The working group held 19 informal meetings during the period from 5 to 16 December 2005, and 10 meetings from the period 30 January to 3 February 2006. The present report includes a summary of all these meetings, as reflected by the Chairperson-Rapporteur. A total of 488 people attended the meetings of the working group, including representatives of 69 Governments, 8 United Nations and intergovernmental organizations and 49 indigenous and non-governmental organizations.

10. The Chairperson-Rapporteur proposed to dedicate the first two weeks to the consideration of articles related to a) self-determination; b) lands, territories and resources; and c) other articles where potential agreement might be reached. Accordingly, he announced that the work would be organized around three chapters:

(a) the preambular paragraphs and articles related to the right to self-determination which are: preambular paragraphs 12, 14, 15, 15 bis, 18, 18bis, articles 3, 31, 32, 33, 34, 35, 45, and 45bis;
(b) the preambular paragraphs and articles related to lands, territories and resources which are: preambular paragraphs 6, 8, 10, articles 10, 21, 25, 26, 26bis, 27, 28, 28bis, 29, and 30;
(c) other articles of the draft.

IV. Summary of Discussions

11. It was agreed that the group of articles on self-determination and lands and natural resources would be considered in informal plenary meetings whilst the third group of articles would be discussed in informal consultations.

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14. At the end of the discussion on the articles related to the right to self-determination, the Chairperson-Rapporteur summarized the status of these articles. He considered that preambular paragraphs 12, 14, 15, and 15bis did not require further discussion.

15. Regarding article 3, the Chairperson-Rapporteur noted that consensus could be reached on the basis that article 31 be placed immediately after article 3. Furthermore, he added that article 31 could be improved taking into account the proposals made by the participants. These proposals are contained in Annex I of the report.

16. Referring to articles 32 and 34, the Chairperson-Rapporteur considered that no consensus was found as to whether or not the word ‘collective’ should be kept. He further noted the lack of agreement on the word ‘spirituality’ in article 33. The reference to ‘border control laws’ still remained the outstanding issue in the paragraph 2 of article 35. In this regard, the Chairperson-Rapporteur indicated that he would make a proposal in his revised text to be found in Annex I of the report.

17. The representative of Canada reported to the working group on the informal consultations carried out on article 45. The report is included in the summary of proposals contained in Annex I of the report. The Chairperson-Rapporteur indicated that he would provide a compromise text on the basis of the proposal that emerged from the consultations. He also reminded the working group that another proposal was tabled on an article 45bis aimed at addressing the concerns of some States regarding the issue of territorial integrity and that this proposal was reflected in his summary of proposals.

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V. Conclusion

27. The working group agreed on the adoption of the report of the first part of the session summarized in document E/CN.4/2005/WG.15/CRP.6, with slight changes that are reflected in the present report. It was also agreed that the oral summaries that the Chairperson-Rapporteur and the delegate of Norway provided at the last meeting would be included in the report. These summaries are contained in paragraphs 18 to 30 of the present report.

28. The Chairperson-Rapporteur further informed the working group that a revised version of the proposals he presented at the previous session, as contained in document E/CN.4/2005/WG.15/2, would be contained in Annex I to the present report, taking into consideration the outcome of the plenary discussions and informal consultations held during the session. He indicated that his revised proposals would include all the language provided by the facilitators as it constituted a basis for provisional agreement. He also indicated that he would make proposals regarding articles that were still pending, based on the discussions held during the sessions.

29. The Chairperson-Rapporteur concluded that the revised Chairman’s Proposals would be presented to the Commission on Human Rights with the hope that it would be considered as a final compromise text.

30. One indigenous representative expressed some concerns as there was no consensus on many articles in the text that would be submitted to the Commission on Human Rights. Some governmental representatives regretted that fundamental issues such as self-determination, lands and resources, the nature of collective rights, third party rights and the rights of all other citizens still lack consensus after eleven years of negotiations, and called for clarity of meaning across the Declaration as a whole to ensure that the Declaration become a new standard of achievement rather than a source of disputation. They expressed the view that a Declaration that does not enjoy consensus amongst states would not be of real and practical benefit to indigenous peoples.

The full text of this document is available online at <http://www.ohchr.org/english/bodies/chr/sessions/62/listdocs.htm> .