DOC

CRP7 - Distr

By Janice Duncan,2014-05-07 17:15
17 views 0
CRP7 - Distr

    Distr.

     RESTRICTED

     E/CN.4/2004/WG.15/CRP.7

     16 December 2004

     Original: ENGLISH AND

     SPANISH ONLY

COMMISSION ON HUMAN RIGHTS

    Sixty-first session

    Working Group established in accordance

    with Commission on Human Rights

    resolution 1995/32 of 3 March 1995

    Tenth session

    Geneva, 13-24 September 2004

    and 29 November to 3 December 2004

    INDIGENOUS ISSUES

    Draft report of the working group established in accordance with

    Commission on Human Rights resolution 1995/32

    Chairperson-Rapporteur: Mr. Luis-Enrique Chávez (Peru)

    1. At the resumed session (29 November 3 December 2004), the Chairman

    Rapporteur invites delegations to hold consultations on articles 25 to 30 related to

    land rights and natural resources; self-determination; article 36 related to treaties

    and agreements between states and indigenous peoples; articles that could be

    adopted on a provisional basis and cross-cutting issues. The reports of the

    facilitators follow:

    Report of the facilitators on land rights and natural resources

    General Comments

    The facilitator collected all proposals and considers that all have their merit. Having

    heard, analysed and discussed all the proposals the facilitator presents the following

    comments and suggestions.

E/CN.4/2004/WG.15/CRP.7

    Page 2

    Informal consultations were made with various representatives and delegations. This work involved all actors such as NGOs, the caucus and States. The facilitator highlights the prevalence of a positive and constructive attitude and identifies the general wish to work towards a declaration..

    There is no consensus in articles 25, 26, 28 and 30. Nevertheless, consultations revealed the possibility of new ways towards consensus. The facilitator would also like to stress, in particular, the preliminary understandings around article 26 which will be specified further on.

    ARTICLE 25

    The facilitators identified the persistence of the difficulties from the part of several States around the expression “traditional”. This expression translates a desire of the indigenous peoples to see reflected their spiritual and temporal relationship with their lands or territories but causes concern among governmental delegations. It seems that this concern relates to possible claims, which comprehensiveness would be extremely difficult to be fulfilled.

Another difficulty for some delegations is the use of the word “territory”. This question

    relates to the issue of self-determination.

    The facilitator suggests for future discussions the use of the following text that contemplates/observes the spirit of the Sub-Commission text and tries to reflect the concerns raised during the discussions.

The paragraph would ready as follows:

    Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with their traditionally owned or otherwise occupied and

     E/CN.4/2004/WG.15/CRP.7

     Page 3

    used lands or territories, waters and coastal seas and other resources and to uphold their

    responsibilities to future generations in this regard.

    ARTICLE 26

    The discussions on article 26 opened up the possibility for indigenous representatives, governments and NGOs to reach a preliminary understanding on the language of the referred article.

    The basis would be the proposal by Indian Law Resource Centre with slight amendments.

    Related to that, it is suggested a new paragraph would complement article 26 by presenting a method for its realization.

    Another important point to be left for further consultation regards “subsurface”. Indigenous representatives expressed desire to keep this language in the text. Many government delegations strongly opposed it. The facilitator suggests that this point should be the object of further consideration and , consequently, prefers to use the expression in brackets.

The suggested language could read as follows:

    Article 26

    States shall give full legal recognition and protection to the lands, territories and resources that are possessed by indigenous peoples by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. Such recognition shall be in accordance with the customs, traditions and land tenure systems of the indigenous peoples concerned. Indigenous peoples have the right to [own/posses], use, develop and control such lands, territories and resources.

E/CN.4/2004/WG.15/CRP.7

    Page 4

    New article or complementary paragraph:

    States shall/should establish a fair, open and transparent process to adjudicate and recognize the rights of indigenous peoples pertaining to their lands and resources, including those which were traditionally owned or otherwise occupied or used. The indigenous peoples shall have the right to participate or, where appropriate, to be consulted in this process.

    ARTICLE 28

    Discussions showed that there are two different subjects in article 28. One relates to the environment and the other relates to military presence on indigenous lands. One specific proposal deserves special consideration in the view of the facilitator, that is, to split article 28 in two different articles.

Article 28 could read as follows:

    Indigenous peoples have the right to the conservation, restoration and protection of the environment and the productive capacity of their lands or territories and resources, as

    well as an equal right to any assistance available for this purpose from States and through international cooperation.

    States shall take effective measure to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples.

    States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are dully implemented.

     E/CN.4/2004/WG.15/CRP.7

     Page 5

    Article 28 bis would read as follows:

Military activities shall not take place in the lands or territories of indigenous peoples,

    unless justified by imminent risk to relevant public interest or otherwise freely requested

    by the indigenous peoples concerned.

States shall undertake effective consultations with the indigenous peoples concerned,

    through appropriate procedures and in particular though their representative institutions,

    whenever consideration is being given to use of their lands or territories for military

    activities.

    ARTICLE 30 Two critical points were subject of concern: the first relates to the use of the words

    “seek” or “obtain”. Having heard all the positions presented, the facilitator strongly

    suggests to keep in the text the original language that is the verb “obtain”. The second

    concern refers to the mechanism of redress. The solution of this question is to be

    addressed in other parts of the draft declaration, particularly in article 27.

The suggested wording would read as follows:

    Indigenous peoples have the right to determine and develop priorities and strategies for

    the development or use of their lands or territories and other resources. This includes the

    right to require that States obtain their free and informed consent prior to the approval of

    any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of their mineral, water or

    other resources. Pursuant to agreement with the indigenous peoples concerned, States or

    when the case any third party, shall provide just and fair [compensation] for [redressing]

    any environmental, economic, social, cultural and spiritual adverse impact

    Article 27

    This article was considered in informal meetings in which a broad range of States

    and indigenous groups were represented. A general and in-depth discussion was

    E/CN.4/2004/WG.15/CRP.7

    Page 6

    held on the entire text of the article, and efforts were subsequently focused on the

    Spanish terms “reparación” (“reparation” or “redress”), “restitución

    (“restitution”) and “resarcimiento” (“redress”), which constituted the main stumbling block for delegations. On the one hand, several indigenous and

    governmental organizations preferred to retain the word “restitución”, while other

    Government delegations preferred the word “reparación”, or “redress” in English.

    Another problem lay in the use of the term “redress”: as the term has no direct

    equivalent in Spanish, it is sometimes translated in Spanish by the word

    resarcimiento”.

The facilitators submitted the following proposal, which was intended to facilitate

    dialogue and which was discussed, although no consensus was reached, as noted

    previously; nevertheless it was the text that attracted the most support:

    Article 27. Indigenous peoples have the right to [restitution of] [reparation for]

    [redress for] the lands, territories and resources which they have traditionally

    owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and informed consent. Where this is not

    possible States shall provide, in collaboration/cooperation with the indigenous

    peoples, effective mechanisms for redress.

In cases where restitution is not possible, and unless the indigenous people

    concerned have given their free and informed consent to other forms of full and

    effective [restitution] [reparation] [redress], they shall have the right to fair and equitable compensation and indemnification.”

At the end of the consultations the delegation of Canada submitted a proposal that

    was not discussed, owing to a lack of time. It is attached as an annex to this

    report. Other proposals concerning article 27 that were received are likewise

    attached.

Article 29

    As the view had been expressed in the conference room that no single text was

    satisfactory to all delegations, the delegations of Mexico and Guatemala

    submitted a proposal aimed at reflecting the various concerns raised by the

    representatives of indigenous peoples and States.

The informal discussion centred on the following proposal:

    First version

    Article 29. Indigenous peoples have the right to, and are entitled to full

    recognition of, full ownership, control and protection of their genetic resources,

    traditional knowledge, manifestations of their culture, cultural heritage and

    intellectual property.

They have the right to special measures to control, develop and protect their

    sciences, technologies and cultural manifestations, including human and genetic

     E/CN.4/2004/WG.15/CRP.7

     Page 7

    resources, seeds, medicines, knowledge of the properties of fauna and flora, oral

    traditions, literatures, designs and visual and performing arts.”

    Some delegations, both from States and from indigenous peoples, expressed

    support for the above text, with some amendments and the introduction of some

    new elements, such as indigenous sports and traditional games. Other delegations,

    primarily from States, expressed a preference for the proposed text contained in

    document E/CN.4/2004/WG.15/CRP.1.

After the various views had been heard, the delegation of Mexico, whose previous

    efforts were commended, submitted a second version that was co-sponsored by

    Venezuela and Guatemala.

    Article 29. Indigenous peoples have the right to, and are entitled to full recognition of, full ownership, control and protection of their genetic resources,

    traditional knowledge, manifestations of their culture, their cultural heritage [and

    intellectual property]. States must take effective measures, including special measures, to protect the

    right of indigenous peoples to control, develop and protect their sciences,

    technologies and cultural manifestations, including human [and genetic]

    resources, seeds, medicines, knowledge of the properties of fauna and flora, oral

    traditions, literatures, designs, sports and traditional games and visual and

    performing arts.”

The debate on the second proposal was centred specifically on the terms

    intellectual property” and “genetic resources”, concepts that had not been accepted, primarily by State delegations, for inclusion in article 29 for various

    reasons that were set out during the meeting. As no consensus was reached with

    regard to those terms, they appear in square brackets in the text. In addition,

    several delegations preferred to retain the text contained in document

    E/CN.4/2004/WG.15/CRP.1; however, the above proposal is included because it

    obtained greater support in the informal consultations.

    Report of the facilitators on self-determination

At the outset, the co-facilitators think it is important to acknowledge that all

    representatives of indigenous peoples and some States support Article 3 of the

    Sub-Commission text.

During the course of their consultations, the co-facilitators identified several

    proposals, concerning the right to self-determination of indigenous peoples, which

    we are forwarding for further consideration by the Chairman-Rapporteur. The

    following proposals were submitted with multiple sponsors:

? CRP 1

    ? CRP 5

    ? Emerging Consensus document with explanatory footnote

    E/CN.4/2004/WG.15/CRP.7

    Page 8

In addition, the following proposals were submitted by individual organizations

    and states:

? World Peace Council

    ? International Organization of Indigenous Resource Development ? United States

    ? France

    ? Russian Federation

In general, the co-facilitators are encouraged by the positive intent expressed in all

    the proposals received and the genuine commitment to achieving consensus.

    A notable development in most of the proposals is the comprehensive or “package deal” approach to addressing the right of self-determination. Using this approach,

    the right of self-determination is stated clearly and then situated within a context

    as clarified through a combination of preambular and/or operative paragraphs.

In several of the proposals, the existing text of Article 3 is unchanged:

“Indigenous peoples have the right of self-determination. By virtue of that right

    they freely determine their political status and freely pursue their economic, social

    and cultural development.”

From that starting point, the proposals then diverge in the use of preambular and

    operative paragraphs (and in one proposal, the use of an explanatory note).

It is clear that the critical issue of “territorial integrity” has yet to be resolved and

    there is no consensus to date. In our view, the remaining work is to seek

    agreement on the appropriate preambular and/or operative paragraphs.

In the opinion of the co-facilitators, we are greatly encouraged by the evidence of

    an emerging consensus. We hope that support will continue to grow for proposals

    which have received the sponsorship of indigenous and state participants.

Report of the facilitators on article 36 related to treaties and agreements

    between states and indigenous peoples

Current working text:

[Indigenous peoples have the right to the recognition, observance and

    enforcement of treaties, agreements and other constructive arrangements

    concluded with States or their successors, taking into account, among other things,

    the original spirit and intent of the indigenous peoples/parties concerned, and to

    have States honour and respect such treaties, agreements and other constructive

     E/CN.4/2004/WG.15/CRP.7

     Page 9

    arrangements.] [States should/shall take all necessary steps under domestic law to

    implement obligations to indigenous peoples under treaties and other agreements

    negotiated with them.] Disputes should be submitted to competent domestic

    bodies or processes for timely resolution. Where such [submission] [resolution] is

    not possible [and the concerned parties agree], disputes may be submitted to

    competent international bodies.

Other texts which were considered:

Indigenous peoples have the right to the recognition, observance and enforcement

    of treaties, agreements and other constructive arrangements concluded with States

    or their successors, according to their original spirit and intent, and to have States

    honour and respect such treaties, agreements and other constructive arrangements.

    Conflicts and disputes, which cannot otherwise be settled, should be submitted to

    competent international bodies agreed to by all parties concerned.

     - Sub-Commission text

Indigenous peoples have the right to the recognition, observance and enforcement

    of treaties, agreements and other constructive arrangements concluded with States

    or their successors, according to their original spirit and intent, and to have States

    honour and respect such treaties, agreements and other constructive arrangements.

    Conflicts and disputes, which cannot otherwise be settled, should be submitted to

    competent national bodies or processes for negotiations and resolution or, where they do not operate or are unreasonably prolonged, to international

    bodies agreed to by all parties concerned.

     - proposal in CRp1

Indigenous peoples have the right to the recognition, observance and enforcement

    of treaties, agreements and other constructive arrangements concluded with States

    or their successors, according to their the original spirit and intent of the parties,

    and to have States honour and respect such treaties, agreements and other

    constructive arrangements. Conflicts and disputes, which cannot otherwise be

    settled should be submitted to competent domestic bodies or processes for

    resolution. Where this is not possible or resolution is unreasonably

    prolonged, conflicts and disputes may be submitted to competent international

    bodies agreed to by indigenous and states parties concerned.

     - proposal by Canada, based on Sub-Commission and CRp1 texts

States should/shall take all necessary steps under domestic law to implement

    obligations to indigenous peoples under treaties and other agreements

    negotiated with them. Conflicts and disputes should be submitted to

    competent domestic bodies or processes for resolution. Where such

E/CN.4/2004/WG.15/CRP.7

    Page 10

    submission is not possible and the concerned parties agree, conflicts and

    disputes may be submitted to competent international bodies.

     - proposal by the United States of America, December 2004

    Indigenous peoples have the right to have the treaties, agreements and

    constructive arrangements concluded with States, their predecessors and

    successors be recognized, respected, observed, implemented and enforced in

    accordance with their original spirit and intent, in good faith, and as

    understood by indigenous peoples. Disputes that cannot otherwise be settled

    shall be submitted to competent international bodies by the States’ parties or

    indigenous peoples concerned.

    Nothing in this Declaration may be interpreted as to diminish or eliminate

    the rights of indigenous peoples contained in treaties, agreements and

    constructive arrangements.

    - proposal by the Indigenous caucus at the Organization of American

    States, November 11, 2004

    Report of the facilitators on articles that could be adopted on a provisional basis

     The Chairman requested Norway to undertake informal consultations with

    indigenous peoples’ representatives and States, aimed at exploring the possibility of

    adopting articles on a provisional basis. Norway conducted such informal consultations,

    in collaboration with the co-facilitators of the indigenous caucus. The consultations were

    described as positive and constructive. Contributions from the indigenous caucus, which

    encompassed results of consultations from each of the seven regions, demonstrated a

    commitment to achieve substantial progress in this session of the Working Group.

    Norway stated that there is broad agreement on a large number of articles, and even potential consensus on many of them. However, Norway was of the opinion that it

    would be difficult to move to provisional adoption of this package before the Working

    Group has solved some of the other outstanding questions, including the right of self-

    determination, lands and resources and collective rights in general. Norway submitted a

    package, containing 13 preambular paragraphs and 14 operative articles, and proposed

    that it be set aside for final consideration at an appropriate time, in order to address the

    remaining outstanding issues in some of the articles.

Report this document

For any questions or suggestions please email
cust-service@docsford.com