SUBCOMMISSION CONTINUES DISCUSSION OF RIGHTS OF INDIGENOUS PEOPLES

MORNING

HR/SC/99/17
17 August 1999



The Subcommission on the Promotion and Protection of Human Rights this morning continued its consideration of the human rights of indigenous peoples, paying particular attention to their relationship to land.

More than a dozen non-governmental organizations (NGOs) were joined by several Subcommission Experts in voicing concern over the treatment of indigenous populations in various parts of the world.

Expert Erica-Irene A. Daes, Special Rapporteur on the issue of the relationship of indigenous peoples to land, said her research showed that States generally did not accord sufficient legal status and rights for indigenous peoples to their land, and often assumed power to extinguish title to land. She called for legislation to protect indigenous territories, and to ensure the full participation of indigenous groups in decision-making related to their lands.

A representative of the International Organization of Indigenous Resource Development called for indigenous peoples to be able to participate fully in United Nations operations. He said that the recent celebrations of the 50th anniversary of the Universal Declaration of Human Rights had highlighted the exclusion of indigenous peoples from the UN family except on subject of human-rights violations.

Expert El-Hadji Guisse said the Subcommission should also expand the land issue to include the consideration of peoples displaced from their lands by colonialism. There were many examples of this in Africa and Asia, he said.

Expert Miguel Alfonso Martinez introduced a final report on treaties, agreements and other constructive arrangements between indigenous peoples and States, leading to a discussion among other members of the Subcommission -- David Weissbrodt, Jose Bengoa and Asbjorn Eide among them -- over whether or not there were indigenous peoples in Asia and Africa.

Expert Mustapha Mehedi called for educational projects to support the rights and cultures of indigenous groups.


NGOs addressing the session were France Libertes - Fondation Danielle Mitterand; Minority Rights Group; International Organization of Indigenous Resource Development; International Institute for Peace; Centre Europe - Tiers Monde; Consultive Council of Jewish Organizations; Centre of Economic and Social Studies of the Third World; Indian Movement "Tupaj Amaru"; Pax Romana; International League for the Rights and Liberation of Peoples; Franciscans International;and International Educational Development
/Humanitarian Law Project.

The Subcommission will reconvene this afternoon at 3 to continue its deliberations on the rights of indigenous peoples. It may also begin discussion of prevention of discrimination against minorities.

Statements

ERICA-IRENE A. DAES, Subcommission Expert, introducing her report on indigenous peoples and their relationship to land, said a fluid and flexible atmosphere was needed when considering the topic. The debate today was evolving, and it provided an opportunity for States and indigenous peoples to make positive human-rights contributions around the issue. States generally did not accord sufficient legal status and rights for indigenous peoples and their land, and often assumed power to extinguish title to the land indigenous people held. The expropriation of indigenous lands and resources -- often without the consent of indigenous peoples -- was a growing and severe problem.

The report set out preliminary recommendations, calling, among other things, for legislation to recognize, demarcate and protect land belonging to indigenous peoples; for the full participation and consent of indigenous peoples when drafting legislation; for the renunciation of discriminatory legal doctrines that denied or limited indigenous rights to land and resources; for the participation of indigenous peoples in decision-making at all levels --including the UN Commission on Sustainable Development and the Convention on Biological Diversity; and for assistance with training, education and financial resources by the UN to assist indigenous peoples with negotiations related to their lands and resources.

MIGUEL ALFONSO MARTINEZ, Subcommission Expert, introducing his final report on treaties, agreements, and other constructive arrangements between States and indigenous peoples, said the document was not the final word on the subject. There would be corrections of a technical nature.

Chapter four of the report contained conclusions and recommendations, he said --and there the results of 10 years of work could be seen. It should be stressed that all the people in the world should have the right to self-determination. Questions of property issues should be resolved peacefully. Another conclusion was that in the vast majority of cases, there was present conflict or potential for future conflict. There was also a conclusion that treaties that had existed continued to be in force today. There should be a new jurisdiction over indigenous affairs. It should make binding decisions in cases of dispute.

EL-HADJI GUISSE, Subcommission Expert, said peoples displaced from their land because of colonization should be considered in discussions related to indigenous peoples and their land. Examples of these situations could be found in Africa and Asia; the contributions of these people and study of their experiences would enrich the discussion about rights to land. Land was central, but other issues -- such as preservation of the environment -- should also be considered. Indigenous peoples needed to have intact environments so that they could be self-sufficient in food, water, and medicines.

MELANIE LE VERGER, of France Libertes - Fondation Danielle Mitterrand, said the Subcommission's attention should be called to the Mapuche people. They made up 10 per cent of the Chilean population, but there had been massive expulsions in their territories. The Chilean response to protests had been a repressive policy with arbitrary arrests. There had been imprisonments and cases of torture.

France Libertes - Fondation Danielle Mitterand asked the United Nations to outlaw armed militias and to force Chile to recognize that rights of the Mapuche people.

ALAN PHILLIPS, of Minority Rights Group International, said deforestation was having a dramatic effect on indigenous peoples. Deforestation was occurring in a number of countries and amounted to an attack on the rights of indigenous peoples. The impact of logging, dams, tourism and forced displacement particularly affected indigenous women. In Malaysia, the indigenous Dayak people were threatened in this manner, and logging in northern Thailand was having similar effects on indigenous populations there. In Nepal, fishing communities were damaged by the construction of a dam and a bridge; access to forest resources was denied and fishing controlled. In India, the history of displacement was painful; precious mineral resources were found in the forests and indigenous people were displaced from their lands and often not successfully resettled. Women, who often had to walk much farther to obtain fuel and water for their families, were especially vulnerable to these developments.

The emphasis on cash economies, international development agencies and commercial companies was largely responsible for these catastrophes. Clear policies should be adopted recognizing indigenous peoples' rights, and indigenous peoples should be informed about and should participate in development projects affecting them.

WILLIE LITTLECHILD, of International Organization of Indigenous Resource Development, said the organization was encouraged by the ability of the working group on indigenous populations to take into account all the interventions presented. It was very concerned, however, that due to the very high number of participants from all regions of the world, it was unable to consider all the items on its agenda because a strict time allocation had been give for each statement.

The recent commemoration of the 50th anniversary of the Universal Declaration of Human Rights had highlighted the exclusion of indigenous peoples from the United Nations family except on the subject of violations. Indigenous peoples had a lot to offer. Their involvement could help build a better world, but they must be able to participate as equal partners.

PANKA BHAN, of the International Institute for Peace, said the Kashmiri Pandit community was facing extinction because of religious fundamentalism and terrorism. The threat was supported by a neighbouring country which had political reasons for the extinction of these peoples whose existence went back thousands of years. The Kashmiri Pandits were highly literate and had made great contributions to the development of Kashmir. Until recently, these people had lived peacefully with their neighbours. In the early 90s, they began to be attacked and had to leave their homes. They sought shelter in migrant camps in Jammu, Delhi and other places.

These people were not the first victims. The forces of fundamentalism and terrorism had wreaked havoc in Afghanistan, too. There were also problems in Central Asia, and fundamentalist terrorism posed a threat to the rich cultural diversity there. The Subcommission should look into the situation of the Pandit community. Their way of life, culture and language were under threat.

MALIK OZDEN, of Centre Europe - Tiers Monde, said how could there be talk about indigenous progress when States were able to take indigenous land in order to exploit the resources it contained? Under the cover of globalization and progress, the pillage of indigenous societies and the destruction of the environment, often by transnational corporations (TNCs), was encouraged. States and the international community had a duty to protect indigenous cultural heritage and land.

There was a critical situation involving Columbia's Embera-Katio people of the Sinu River, whose fishing livelihood had been threatened. The basin there was very rich, and TNCs in Sweden and Russia, as well as land owners, were planning to build two gigantic dams there. The first dam had been completed, and was only waiting the green light from the authorities. Its use would have had disastrous ecological consequences and the rights of the people living in the region would be weakened.

GEORGE WILKES, of the Consultative Council of Jewish Organizations, said that when considering the advancement of indigenous peoples, it was useful to focus on five points. First, non-indigenous interests did not have to be opposed to indigenous ones. A flexible approach could support the mutual interests of the two. Second, more cooperative relations required appreciation of the complexities of relations between different communities within States. Third, a "dialogue" implied mutual recognition among all parties. Fourth, institutions that linked indigenous and non-indigenous representatives were critical for promoting open scrutiny. Fifth, agreements protecting the human rights of indigenous peoples did not necessarily constitute abnormal or special treatment.

The last five years showed that the resolution of conflicts over the
human rights of indigenous peoples was made easier by the use of more developed concepts of State sovereignty than by an absolute fixation on the classic models laid down three hundred or more years ago. The rights of indigenous peoples were at the cutting edge of developments in the relationship of all manner of human rights to the sovereignty of States, and not those of indigenous peoples alone. The Office of the High Commissioner for Human Rights should play a leading role in the process.

ENRIQUE KU HERRERA, of Centre of Economic and Social Studies of the Third World, said that in Mexico, there were serious problems of underdevelopment and marginalization. Millions of people lived in poverty, including the majority of indigenous peoples. Mexican indigenous people had organized to fight for more democratic change. Some of the indigenous had been deceived, and saw conflict as the only way for change.

Indigenous peoples would like a forum through which to appeal to authorities to provide a political solution to the problem in the Mexican state of Chiapas as a way of closing the door to violence.

LAZARO PARY, of Indian Movement "Tupaj Amaru", said the main aim of the International Decade for indigenous peoples needed to be to assist indigenous people to achieve sustainable development in areas such as health, culture and education. Little had been done since the Decade began to solve the problems of indigenous peoples. They continued to be deprived of their right to subsistence and were subject to extreme poverty. The rich countries in the North and the indifferent elite in the South were preoccupied with their own material interests. Indigenous peoples needed to be assisted with, among other things, modern instruments for work and investment in sustainable-development projects. Assistance today was paultry and undermined the dignity of indigenous peoples. Courses or training workshops did not solve problems; they just produced reports.


The working group was the only independent forum open to indigenous peoples; the elimination of this small door which was open to the temple of human rights would deny them access to the workings of the UN system. The group needed the appointment of indigenous representatives. An international legal framework was needed to fill a terrible legal gap for indigenous peoples. The next session of the working group should not be held in France at UNESCO.

R.J. RAJKUMAR, of Pax Romana, said the findings in the working group report could contribute to redressing the historical injustice suffered by indigenous peoples by ensuring the validity of indigenous claims based on treaties via international and domestic law. However, the lack of analysis in the report concerning treaties concluded between States and the indigenous peoples of Africa and Asia was a matter of great concern. This information gap could have led to the erroneous supposition and implicit conclusion that indigenous peoples were absent from these continents.

No formal definition of indigenous peoples existed, and the working definition of indigenous peoples, as formulated by the Special Rapporteur, emphasized the importance of the criteria of self-identification for determining indigenous peoples. The massive presence of Asian and African indigenous peoples at the working group in recent years testified to their existence and denied the implicit conclusion contained in the report. Among the poorest in Asia, indigenous peoples there were estimated to be around 160 million, including 68 million in India, more than 7 million in the Philippines and 11 million in Myanmar. In India, indigenous peoples classified as scheduled tribes made up about 8 per cent of the total population. There were over 427 indigenous communities in India, each with its own special language and culture.

JOSE BENGOA, Subcommission Expert, said the report on treaties drew a distinction between minorities and indigenous peoples. But in Asia and Africa there were no examples of indigenous peoples, and the various groups there should be recognized as minorities. Many of these people considered themselves indigenous peoples in an effort to gain greater recognition from the international community. But the basis of the discussion should be the difference between a nation and its ethnic groups.

The validity of treaties and their universalities was very complex. But treaties were different in different cultural contexts. Concerning the question: "Are indigenous peoples nations?" -- for some this was central to international policy. The conclusion in the report was that there was not sufficient legal argument that indigenous peoples had lost their international status. The rapporteur recognized the right of all people to the right to determination. An analysis of the various principles of the right to determination was needed. If peoples were placed under the category of nations, the only thing that would separate them was power, force and the way in which they were being treated. The challenge was to see how the universal principle of self-determination would be exercised in a world which was increasingly globalized. More study was needed.

MUSTAPHA MEHEDI, Subcommission Expert, said indigenous nations had often sought to maintain their identity and a cultural heritage. Today, it was accepted through policies of integration to accept these groups, although there were often actions to the contrary. UNESCO had published a work about indigenous peoples and the United Nations system. In the introduction, it said that indigenous persons had been ignored throughout the system. The international scene had become a precious podium for the promotion of rights that had been denied at the national level.


Education for democracy, peace and tolerance had to be taught to young people. UNESCO had supported various projects on education and culture for indigenous people.

ROBERTA MUZIO, of the International League for the Rights and Liberation of Peoples, said the relationship between indigenous peoples and the land was different from that in the West. The land was the basis for life; everything -- food and medicine -- came from it. These territories were now being destroyed, and, along with it, the coexistence of the people with their land. Social and cultural deterioration was also taking place; yet people had the right to develop their cultures and maintain their dignity. A new relationship between indigenous peoples and Governments was needed, where indigenous peoples would participate in decision-making processes. In reality that was not always the case.

The right to self-determination of indigenous peoples should not be considered a threat to the territorial integrity of existing States. The right should be updated and a broader consensus should be reached. In Chile, there were profound inequalities for indigenous peoples. Policies to prevent discrimination should be permanent.

DAVID WEISSBRODT, Subcommission Expert, said the working group had made several important contributions to the promotion and protection of human rights. In the working paper of Mrs. Daes, the fundamental connection of indigenous peoples to their land as a basis for their livelihood and culture was reaffirmed. The paper addressed this issue in a way which was both attentive to the common struggles faced by indigenous communities, and at the same time, was sensitive to the particular needs of indigenous peoples within their local communities. As such, the study was both holistic and specific.

The working group had also received the report of Mr. Martinez on indigenous treaties. That study dealt with a large canvas by trying to delimit the space in which the study would be done. The distinctions drawn, however, were not always logical or sustainable. Last year concerns were expressed that the study did not deal with indigenous communities in certain parts of the world, particularly Africa and Asia. The present draft showed some improvement in stating that there were indigenous communities all over the world. Yet, perhaps reflecting the broad nature of the study, the study tried unsuccessfully to characterize some groups as minorities and thus outside the scope of the study.

The draft declaration on the rights of indigenous peoples was a very important reaffirmation of general human-rights principles together with a recognition of the unique issues facing indigenous communities throughout the world. For example, this draft declaration addressed the needs of indigenous peoples in terms of their communal relation to their lands, their highly
participatory approaches to Government, and the challenges they faced in many parts of the world in preserving their traditions, religions, cultures, languages and other characteristics central to their way of life.

ASBJORN EIDE, Subcommission Expert, said that legal developments concerning indigenous people during the International Decade were significant and might need more study. A world conference should be held at the end of the Decade. Concerning land rights, this was one of the most important questions for indigenous peoples. Many areas considered in the report were significant, including the notion of "crown land" and the weakness of that doctrine; the failure to demarcate land and enforce laws; the failure of States to recognize land claims; and the expropriation for national interests of land held by indigenous peoples. The role of international development institutions such as the World Bank should be considered. Mr. Eide said he generally endorsed the recommendations in the report. The report's framework allowed for clear analysis.

Concerning the study on treaties by Subcommission Expert Martinez, it had matured over time and changed in scope and content. It combined historical analysis with current developments. The study was polemical and provocative. But Mr. Eide said he did not agree with the absolute dichotomy drawn between indigenous peoples and minorities. The study was not the ultimate answer to the questions posed, but, for one thing, provided a set of questions to develop further thinking and analysis on self-determination.

PHILIPPE LE BLANC, of Franciscans International, said the organization recognized the importance and the relevance of the working paper on indigenous peoples and their relationship to land. It referred to the inequalities and injustices contained in the legislation of different States where indigenous peoples lived and also identified injustices perpetrated by the various institutions responsible for land issues. Indigenous peoples had suffered from aggression and violations for over 500 years. More recently, these abuses appeared to have been aggravated as a result of neo-liberal economic policies, which often treated indigenous peoples and their lands mainly in terms of money and profit.

The working paper declared that the legacy of colonialism was probably most acute in the area of expropriation of indigenous lands, territories and resources for national economic and development interests. Expropriation took place in areas where indigenous territories were rich in minerals or other resources and was often carried out with little concern for the long-term effect it had on the lives of indigenous peoples.

KAREN PARKER, of the International Educational Development/Humanitarian Law Project, said an international mechanism for complaints or claims of indigenous peoples was needed when national mechanisms were not adequate. The situation for the EZLN in Chiapas, Mexico, was grave. Almost one-third of the Mexican Army was there along with other security forces. The purpose of this presence was to intimidate and disperse the indigenous people there.

The indigenous peoples had organized themselves into autonomous municipalities, this according to an ILO Convention which recognized the right of indigenous peoples to live according to their traditional ways. The Government had taken action against these autonomous municipalities. Human-rights workers were expelled; soon the areas were almost completely militarized. The Subcommission should condemn Mexico for grave violations of human rights, with particular emphasis on the harm done to indigenous peoples.