DOCUMENT: WGRPT-2.TXT U N I T E D N A T I O N S FOR PARTICIPANTS ONLY E/CN.4/1996/WG.15/CRP.7 1 November 1996 ENGLISH ONLY GE.96-14197 DRAFT REPORT OF THE SECOND SESSION OF THE WORKING GROUP ESTABLISHED IN ACCORDANCE WITH COMMISSION ON HUMAN RIGHTS RESOLUTION 1995/32 OF 3 MARCH 1995 Chairperson-Rapporteur: Mr. Jose Urrutia (Peru) ESTABLISHMENT OF THE WORKING GROUP 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, 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. 2. The Working Group held ... meetings during the period 21 October - 1 November 1996. A total of .... people attended the Working Group, including representatives of .... Governments and .... indigenous and non-governmental organizations. 3. This report is solely a record of the debate and does not imply acceptance of the usage of either the expression "indigenous peoples" or "indigenous people". In this report both are used without prejudice to the positions of particular delegations, where divergences of approach remain. 4. The Working Group was opened by a representative of the High Commissioner for Human Rights/Centre for Human Rights on behalf of the High Commissioner for Human Rights. It was reported that, in accordance with the procedures established by the Commission on Human Rights in its resolution 1995/32, a further 28 organizations of indigenous people had been accredited by the Economic and Social Council, bringing the total to 106. 5. At its first meeting, the Working Group unanimously re- elected Mr. Jose Urrutia (Peru) as its Chairperson- Rapporteur. ORGANIZATION OF WORK 6. During the second meeting the provisional agenda was adopted. At the third meeting the agenda was amended by including a fifth item entitled "Other matters". 7. With regard to the organization of work, an indigenous representative read a statement, agreed upon by the caucus of indigenous peoples, calling for the immediate adoption of the draft "declaration on the rights of indigenous peoples" as adopted by the Sub-Commission without change, amendment or deletion as being a statement of minimum standards. He stated that all indigenous nations, peoples and organizations present regarded the draft declaration as adopted by the Sub-Commission as the minimum standards for the promotion and protection of the fundamental rights of indigenous peoples and called upon all participants to this session to engage in a general debate on the fundamental issues and concepts of the draft while clarifying that indigenous peoples would not engage in a dialogue which would dilute or change the draft. Furthermore, he requested that there be a plenary consensus on a change of the internal rules of procedure guiding the Working Group, specifically providing for the equal and full participation of indigenous peoples in its deliberations, including full participation as partners in the decision-making authority of the Working Group. He continued by stating that inherent in this request is the recognition that the report of the Working Group must be produced with the full involvement and consent of indigenous peoples and, more importantly, required that the draft declaration could only be transmitted to the Commission on Human Rights with the full and informed consent of indigenous peoples. He stated that the report must formally request the amendment of Commission on Human Rights resolution 1995/32 of 3 March 1995, to ensure the full and equal participation of indigenous peoples and nations in the Working Group. Finally, he repeatedly requested that Government delegations respond to the statement and the proposals therein. 8. The comprehensive nature of this statement was reflected in a large number of statements of both regional groups of indigenous organizations as well as individual indigenous organizations in which support for the statement was expressed and the proposals therein reiterated. 9. The representative of the Government of Australia stated that participation of indigenous peoples was absolutely fundamental to the process of elaborating a draft declaration. Adoption of a declaration would be meaningless if that process would not lead to an understanding on the part of indigenous and non-indigenous peoples and Governments of the contents of the draft and the reasoning and necessity behind it. He stated that growing international and national awareness of indigenous issues had led to steady progress but that problems remained that required further consultation and perhaps education. He stated that the draft as adopted by the Sub-Commission was a complex instrument that contained many issues that touch upon matters of governmental jurisdiction and the position of non-indigenous people in society. He continued by stating that it was impossible for his Government at this stage to consider the declaration as adopted by the Sub-Commission as a whole and suggested that, at this point, comments on specific articles be put forward as a way of providing information and not to come to any conclusions. He concluded by stating that, in practice, indigenous peoples participate on an equal basis in the Working Group considering that the declaration must have the support of indigenous peoples to be successful and therefore urged participants to listen to each other and appealed to all participants to work through the text of the draft in a spirit of cooperation to avoid derailment of the process. 10. The representative of the Government of Denmark stated that his Government's position was clear in its support of the draft as adopted by the Sub-Commission. He expressed the wish to move forward considering that his Government considered adoption by the General Assembly a matter of urgency. He stated furthermore that proceeding without the participation of indigenous peoples would be very unfortunate and render the resulting declaration meaningless. He said that ownership of the draft by all participants could only be established through dialogue and therefore urged the contributions of all participants in this respect. Finally, he stated that, although the Working Group is bound by its mandate and rules, it would be conducive to interpret the rules as liberally as possible. 11. The representative of Canada reiterated Canada's commitment to achieving the goal of a declaration that reflects the unique place of indigenous people in the world; is universal in application; promotes reconciliation and the protection of indigenous rights; that works effectively against discrimination; and provides clear and practical guidance for the development of effective and harmonious relationships between indigenous people and States. He recalled that at the first session of the Working Group, which he believed to have been a success and a landmark, it was clearly established that the basis for the work would be the "draft declaration on the rights of indigenous peoples" and that the completed overview of the draft had demonstrated broad support for the development of this important human rights instrument and the need for careful attention to its provision. He stated that the input of the many organizations of indigenous people present would be indispensable for developing a strong and durable declaration and that, if the Working Group were to make progress, it would be imperative that the full range of positions be voiced and that States and organizations of indigenous people alike must take up the challenge, and bear responsibility for taking the Working Group significantly closer to our goal. 12. The representative of Mexico stated that as far as her delegation was concerned there were no easy or more difficult articles. The delegation would follow the debate and make proposals which would promote the rights of indigenous people. 13. The representative of the Government of Norway stressed that participation of indigenous organizations was absolutely fundamental. He assured participants that Norway wanted a strong declaration but that some provisions in the draft adopted by the Sub-Commission needed further work. While stating that amendment of the rules could only be done by the Economic and Social Council, he recommended that the rules be applied as flexibly as possible to assure real cooperation and assured indigenous participants of Norway's openness to dialogue and cooperation. 14. The representative of the Government of Chile said that he could not imagine a process without the full participation of indigenous peoples. He considered that it was vital that the declaration be adopted before the end of the International Decade of the World's Indigenous People but that, in order to strengthen, not weaken, the draft some modifications, clarifications and corrections were required in certain articles. 15. The representative of the Government of Sweden stressed the vital importance of the participation of indigenous peoples in the Working Group and said that her Government fully supports the aim of adopting the draft declaration during the International Decade. The representative of the Government of Bolivia stated that the Working Group must continue its work and that indigenous peoples were welcome to participate in line with Commission on Human Rights resolution 1995/32 of 3 March 1995. He continued by saying that the Working Group could not fail to hear the comments of those most concerned. Furthermore, he stated that it would be the governments that would approve the draft and suggested that withdrawal of indigenous peoples from the process would not be beneficial. 16. The representative of the Government of Fiji said that failure to produce substantial results by the Working Group would risk sending the wrong political signal to the world. He stressed that cooperation and partnership between governments and indigenous representatives would be needed and that they both had grave responsibilities in this respect. He stated that the participation of indigenous peoples was fundamental to the draft declaration. Furthermore, he said that Fiji would happily seek the adoption of the draft as adopted by the Sub-Commission but that other governments had not completed their review of the draft, or fully addressed domestic constituencies on the issue and appealed therefore to indigenous peoples too recognise that governments do need further time before they can adopt a more definitive position on the draft declaration as a whole, and on individual provisions. He also said that consultation should not lead to delay. 17. The representative of the Government of New Zealand expressed the belief that it would not be possible to resolve all the very difficult issues that had to be addressed by the Working Group at the current all session since the process towards consensus would take time and involve negotiation and comprise on all parts. She said that it was essential that the views and objectives of indigenous people would continue to be heard in the Working Group. The representative of the Government of the Ukraine stressed that it was important to preserve the partnership between participants and that while all interested parties could provide their comments considering the mandate of the Working Group, further constructive dialogue would benefit all. 18. The representative of the Government of the United Sates of America stated that his Government had fought hard within the Commission on Human Rights to ensure that tribal governments and organizations of indigenous people not in consultative status with the Economic and Social Council would have an opportunity to participate in the Working Group and said that the Working Group needed all of their insights. 19. The representative of the Government of Peru pointed out that the Working Group could not digress from its sole mandate of drafting a declaration. He expressed his confidence that the final report would reflect the legitimate concerns of the indigenous people with relation to the mechanisms for participation and stated the belief that the Commission on Human Rights and the Economic and Social Council should study complementary means of ensuring greater participation of indigenous people than currently exists. 20. The representative of Colombia underlined the importance of the participation of indigenous people in the debate on the draft declaration and expressed concern about the proposal by indigenous peoples that the Sub-Commission's draft be adopted without change as well as the proposal to modify the rules of procedures. The delegation stated that it would support any decision the Chairman thought appropriate in order to make the session a success. 21. The representative of the Government of the Russian Federation stated that full participation of indigenous peoples was vital and that without it the work of the Working Group would be meaningless. He noted that progress in the adoption of the declaration could only be achieved through dialogue. He said that the report of the Working Group should reflect the indigenous peoples' voice and commented that the rules of participation had been flexible within the Working. 22. The Chairperson-Rapporteur stated that he considered all the concerns expressed in the indigenous caucus statement were valid and merited the special attention of all the governmental delegations of the Working Group. He reiterated that he had worked towards the creation of an open climate of discussion within which indigenous people could express their views in their entirety and total freedom. He pointed out that the report would specifically reflect the concerns expressed by the caucus of indigenous people concerning the necessity to study additional forms and mechanisms that would permit greater participation of indigenous people in the Working Group. He reiterated that the draft as adopted by the Sub-Commission was the basis of the work of the working group and that this session was not an exercise of modification and drafting. He hoped that a constructive exchange of the different opinions would allow the United Nations to adopt a declaration on the rights of indigenous people that would ensure effective protection. 23. In a further statement of the indigenous caucus, an indigenous representative stated that it must be explicitly recognized that indigenous nations and peoples were equal participants in the Working Group and not "observers" and that they should have full input on the drafting of the reports of the sessions of the Working Group. He stated furthermore that indigenous peoples must have equal ability to recommend how the work of the Working Group is to proceed and play a direct role in the development of the agenda and all other decision-making processes of the Working Group. He proposed that State-governments discuss with indigenous peoples, both individually and collectively, a change of the rules of the Working Group with a view to securing full and equal indigenous participation which was felt to be a reasonable proposal that fell within the mandate provided to the Working Group by the Economic and Social Council. He said that the indigenous caucus was formally requesting that delegations seriously consider these proposals, which were intended to offer constructive solutions to the practical problems brought to light at this session. He stated that no one wanted to waste valuable time on procedural wrangling, but it was important to all indigenous delegations present that these matters be properly addressed. In closing, he expressed appreciation for the efforts of the Chairman- Rapporteur and the patience of all those present. 24. This statement was supported by several joint and individual statements of indigenous organizations. 25. Following consultations, participants agreed to first hold a general debate on the fundamental issues and concepts of the draft declaration adopted by the Sub-Commission "hereafter participants would comment on the operative paragraphs of the draft without, however, undertaking a drafting exercise. This amendment to the organization of work was adopted. 26. At the ... meeting, the present report was adopted by the Working Group. GENERAL DEBATE 27. The representative of the Government of Bolivia stated that his Government generally supported the draft adopted by the Sub-Commission considering that it contained the minimum standards for the protection of indigenous peoples and is in line with national legislation. He stressed that Bolivia believed it was fundamental to use the term "indigenous peoples" and reiterated the hope that the General Assembly could adopt the declaration as soon as possible. The representative of the Government of Chile said that the Sub- Commission's draft constituted a solid basis for the work of the Group and that the search for better wording should not distort the meaning of the draft. He stated that Chile supports the use of the term "indigenous peoples" but said that self-determination could not become a threat to the territorial integrity of States. 28. The representative of the Government of Fiji reported on a workshop hosted by his Government which attracted the participation of more than 30 indigenous participants from the Pacific region. The purpose of the so-called Suva Workshop was to strengthen capacity, and to disseminate as widely as possible information on the substantive aspects of the draft declaration, and how it affects indigenous peoples. He reported that the Suva Workshop had been unanimous in its full support for the draft declaration in its present form and moreover, it had agreed that the existing language should be retained and, where possible, strengthened. Participants also joined a general consensus that efforts by some States to undermine the existing language, should be actively resisted by indigenous peoples and governments supportive of them. 29. The representative of Mexico referred to article 1 of ILO Convention 169 and noted that the use of the term "indigenous peoples" should not imply rights that could be conferred in international law. He spoke of the Mexican Constitution and in particular article 4 which recognised the multicultural composition of his country. He stressed that indigenous people had a right to development, which included the right to participate in economic, social, cultural and political development. He also hoped that the draft declaration would be based on existing human rights norms, in particular ILO Convention 169. 30. The representative of the Government of Finland stated that, contrary to what had been argued in the Working Group, Finland was of the opinion that the language of the draft declaration, which his Government believed to define minimum standards, was not at all incompatible with corresponding United Nations instruments. He said that with regard to the obligations of States, the language of the draft was similar to that of the Declaration of Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. He stated that Finland supported the use of the term "indigenous peoples" since it makes meaningful the great number of collective rights in the draft. Finland was also ready to accept the term "self-determination" since this right of all peoples is a fundamental principle of international law and carries with it a State duty to promote it. He extensively referred to recommendation No. XXI (48) of the Committee on the Elimination of Racial Discrimination which emphasized that one has to distinguish between internal and external aspects of the right to self- determination. He stated that, according to the Committee, the internal aspect means that all peoples have the right to pursue freely their economic, social and cultural development without outside interference, while the external aspect implies that all peoples have the right to freely determine their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and exploitation. The Committee had pointed out that Governments should be sensitive towards the rights of persons belonging to ethnic groups but emphasized that the Committee's activities should not be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. 31. The representative of the observer Government of Switzerland reiterated the urgency of adopting a declaration of substance which, through its clarity and conciseness, would have to be widely understood and accessible, as an important political signal by the international community. She stated that her Government felt that there were enough elements available to understand the term "indigenous peoples", which her Government preferred, without defining it. She referred to Switzerland that, with a practice of federalism and direct democracy, was very sensitive towards the rights of minorities and the cohabitation of different cultures, free to define themselves, peacefully, as peoples. She stated that Switzerland had, despite its diversity, remained a unitary State through the application of the principle of subsidiarity that resulted in the cantons having broad powers, in particular with regard to education. Her Government believed that such a concept could also be applied to the situation of indigenous peoples. 32. The representative of the Government of the United States of America emphasized its strong support for the goal of protecting indigenous rights, both at home and abroad, particularly those pertaining to the freedoms of religion, speech and association. He stated that his Government viewed the adoption of a draft declaration as of critical importance. 33. The representative of Government of New Zealand said that to achieve a Declaration that would be applicable to and for the benefit of indigenous people in all parts of the world, some very difficult issues had to be addressed by the Working Group. Not all the issues would be resolved at the current session. The process towards a consensus Declaration would take time and would involve negotiation and compromise by all involved. She added that indigenous people had for a long time made a substantial effort in order to set clearly before the international community their views and objectives. It was appropriate, indeed essential, that their views continue to be registered in the Working Group. The representative noted that following the general election held in New Zealand on 12 October, negotiations were underway among the political parties represented in the new Parliament to determine who has the necessary level for support to form the next Government. A convention on caretaker Government currently applied and it was thus not appropriate for the delegation to make detailed statements on the New Zealand position for the time being. 34. The representative of the Government of Peru stated that his Government could accept the majority of the articles as adopted by the Sub-Commission but regarded certain articles contradictory and impractical in their applicability. He stated that it was his Government's national experience that it was possible, through constructive dialogue, to develop practical solutions that guarantee indigenous peoples different high levels of self-government which take into account the concerns and rights of States. He stated furthermore that, in order to come to precise formulations within the draft, especially with regard to self- determination, it would be necessary to simultaneously advance towards a solution regarding some Governments' concerns with regard to the absence of a definition of "indigenous peoples". The representative of the Russian Federation stated that many articles of the draft were acceptable to his Government but that some needed modification. 35. The representative of the International Labour Office stated that, while ILO Convention 169 contained minimum standards for the protection of indigenous peoples in the countries where they live and procedures by which their active participation in the economic and social life of their countries was ensured, the Working Group had the task of framing an inspirational document that could reflect the hopes of indigenous peoples. She said it was therefore essential that the declaration, once adopted, would not fall below the standards set in ILO Convention 169, but would follow the guiding principles of the development of human rights law and constitute a progression. In quoting a previous statement, she reiterated that the ILO Conventions dealing with indigenous peoples had encountered no particular problems in application because of their lack of definition. Instead, they laid down criteria by which their coverage in individual cases was determined, and left to the national parties to determine precisely, the groups covered. She added that ILO Convention 169 included the vital concept of self-identification the ILO regarded essential. She said that those involved must, with the active participation of those directly affected, adopt some objective criteria to determine who is covered by international law without inserting an "external" definition into the declaration. 36. The representative of the Grand Council of the Crees said it wanted the Working Group to recommend to the Commission on Human Rights the approval of the text as approved by the Sub-Commission without changes, deletions or amendments. He sated that each item in the draft was based on the experience of indigenous peoples and was the product of substantial compromise on their part, and, as such, could only provide a minimum standard of protection of rights. He continued by saying that the draft did not create special rights for indigenous peoples but at best corrected the fact that existing human rights instruments had failed to protect the rights of indigenous peoples. The declaration was therefore directed to the effective and full application of international standards to all peoples, including indigenous peoples and with that in mind, nothing in the draft should offend the sensibilities of any State or Government that values and respects the human rights of all peoples. He stated that the Grand Council placed particular emphasis on the respect for the exercise of the right of self- determination of indigenous peoples, and the principle that States respect the obligation to obtain the full and informed consent of indigenous peoples before they commission any procedures which affect their territories or environment. He used the example of the threat of unilateral break away of the Province of Quebec from Canada and the affects on the existing constitutional rights, citizenship, treaty rights, and the consequential denial of their right to self-determination as an example which demonstrated the need for the full exercise of self-determination by indigenous peoples. 37. The representative of the Cordillera Peoples Alliance stated that the draft declaration constituted a minimum standard for the protection of the rights of indigenous peoples and called upon the Working Group to adopt the text as it stood. The Lumad Mindanaw Peoples Federation also supported adoption of the draft declaration without changes. 38. The representative of the Saami Council stated that the draft represented minimum universal standards for the rights of indigenous peoples and should therefore not be weakened. He considered adoption a matter of urgency. He said that the Saami Council saw a clear causal link between the absence of a universal instrument protecting the rights of indigenous peoples and the problems faced by indigenous peoples. He expressed the belief that it was possible to resolve any questions related to the right of self-determination and indigenous rights over lands and related resources if all were willing to interpret them in the right context based on the situation of indigenous peoples and referred to the principle of equality of indigenous peoples with other peoples. 39. The representative of the Chittagong Hill Tracts Peace Campaign stated that the draft is the minimum standard to promote and protect the rights of indigenous peoples. He expressed his concern that some Governments wanted to define indigenous peoples in an attempt to water-down the draft. 40. The representative of the Indian Confederation of Indigenous and Tribal Peoples stated that the draft was an expression of the minimum acceptable standards of the rights of indigenous peoples and called upon the Working Group to recommend immediate adoption so as to enable it to be a true instrument of empowerment to the indigenous peoples enabling them to determine their own future as equal partners in the world community. 41. The representative of the New South Wales Aboriginal Land Council in a joint statement with several other indigenous organisations from Australia stated that the right of self-determination was undeniably the cornerstone of their indigenous rights and the inclusion of a weakened expression in the draft would be unacceptable not only to indigenous peoples but also to others who support the indivisible, universal and non-discriminatory nature of human rights. He said that the collective nature of indigenous rights were a direct application of the right of self-determination and a direct expression of their right to exist as distinct peoples. He continued by stating that although the draft did not reflect entirely their positions they supported it as an articulation of minimum standards. He said that the reasons for these broad positions were that the draft is a comprehensive articulation of interrelated principles which had been identified over decades, that the principles in the draft were drawn from presently recognized international human rights law, that they had been analyzed in the context of the historic and continuing violation of these rights, that the principles offer guidance as to how to remedy this situation, and that the participants in the process of elaboration had included indigenous peoples, various non-indigenous non-governmental organizations, independent, internationally recognized scholars, lawyers, and Governmental and inter-governmental representatives. 42. The representative of the Indigenous World Association stated that the draft was only a step forward to address the subjugation of indigenous peoples and was the framework to treat indigenous peoples with respect and give them the protection they must have in order to survive under repressive nation-States. He said it provided indigenous peoples with a legal basis through which they could insist on the protection of their collective rights and their right to political, economic and cultural survival. He therefore insisted on adoption as minimum standards, without fear of dilution and stated that it must not take another twelve years of debate before adoption. 43. The representative of the International Organization of Indigenous Resource Development stated that the draft was an accurate statement of customary international law and practice and that the rights therein arose from history and morality. He said that elaboration of the draft was not a legalistic exercise but one of declaring important human rights. He stated that indigenous peoples fell at the bottom of every indicator of social and economic well-being which was due to the fact that their rights to self-determination were not recognized. He said that self-determination was a basic human right that all indigenous peoples had by virtue of their existence and meant nothing more than the ability of a group to survive with its own identity. Another representative from the same organization stated that the right of self-determination was fundamental to all their work and that they could not agree to two categories of peoples with regard to secession. He also stated that the related fundamental principle of consent was of major importance and that treaties are international agreements reflecting a Nation to Nation relationship with the Crown. The spirit and intent and indigenous understanding must be honoured and respected. As far as indigenous peoples are concerned, treaties are evidence of the right of self- determination. He called upon the Working Group to recommend to the Commission on Human Rights, the Economic and Social Council and the General Assembly that the draft be approved as it presently stands. 44. The representative of the Ikce Wicasa Ta Omniciye maintained that in order to ensure that the declaration is not used as a tool for the destruction of indigenous peoples, the existing language must remain without amendment and requested that the draft be adopted as the minimum standards of protection of the rights of indigenous peoples and nations. 45. The representative of the Aboriginal and Torres Strait Islander Commission reiterated the statement of the Aboriginal and Torres Strait Islander Social Justice Commissioner on behalf of indigenous delegations from Australia stated that the draft reflected a consensus of all the participants in the elaborating process on the historical and contemporary experiences of indigenous peoples, on their perspectives and aspirations and as such was neither theoretical nor abstract but represented the absolute minimum standard of protection. He stated furthermore that the draft did not create any special rights or privileges but instead sought to correct the fact that international standards had not been applied equally to all peoples and that international human rights instruments had failed to protect their rights and freedoms. He recalled that the joint position of the indigenous delegation from Australia was that the integrity of the draft depended upon an unqualified recognition of the right of indigenous peoples to self-determination as the pillar upon which all other provisions of the declaration rest. He stated that the language of article 3 must remain unaltered. He said that without the recognition of their collective rights as peoples, the declaration could not adequately protect their most basic interests and was thus an indispensable feature of the draft. He stated that individual human rights would not be weakened by a reference to collective rights of indigenous peoples, but instead would complement, and indeed strengthen, the individual rights of 300 million indigenous persons. While referring to article 2, 4(a) and 14 of the International Convention on the Elimination of All Forms of Racial Discrimination, article 6(1) of the 1978 UNESCO Declaration on Race and Racial Prejudice, articles 19-24 of the African Charter on Human and Peoples' Rights, the international prohibition of genocide, as well as rights to peace, permanent sovereignty over natural resources, a clean and healthy environment, development and self-determination, he stated that draft was not the first international instrument to attribute rights to collectivities. 46. The representative of the Miccosukee Tribe of Indians of Florida stated that as we continue the democratization of the world, we must not forget to recognize the rights of indigenous peoples and unanimously approve the 45 articles of the draft. ARTICLES 12, 13 AND 14 AND ARTICLES 24 AND 29 47. The representative of the Government of Brazil stated that his Government supported whole-heartedly articles 12, 13 and 14 since they were essential to the survival of indigenous people. He stated however that they deserved further elaboration considering the overall question of intellectual property in the declaration and possible contradiction with national and international laws. In this respect he suggested deleting the words "archaeological and historical sites" in article 12 in light of a national responsibility for preservation. 48. The representative of the Government of France expressed the general concern that the declaration must be in accordance with other human rights standards. In light of this she stated that the objective to protect indigenous traditions and customs as laid down in articles 12, 13, and 14 did not pose a problem in principle but rather in practice where these traditions are not in line with human rights standards or national law. She also stated that the application of article 14 could not prevent the use of the national language. 49. The representative of the Government of Japan stated that with regard to article 12 property ownership and expropriation under national law had to be taken into account. With regard to the second paragraph of article 13 he said that politics had to be separate from religion. He pointed out that a declaration is by definition non-binding and considered therefore the phrase "shall take effective measures" in the second paragraph of article 14 too strong. He furthermore stated that his Government supported the use of the term "indigenous people". 50. The representative of the observer Government of Switzerland stated that the declaration had to be in conformity with human rights standards. She referred to the Universal Declaration on Human Rights as a cohesive human rights instrument which therefore had been widely disseminated. She said that articles 12 and 13 had to be redrafted so that they would read better, were not repetitious and easier to understand. She also stated that the second paragraph of article 14 went beyond protection and should therefore form a separate article to underline its importance. 51. The representative of the Government of Ukraine requested clarifications with regard to the second paragraph of article 14 as the wording, style and sense, was not very clear. She pointed out that indigenous people, in general, did not get involved in legal proceedings. She stated that indigenous people not only had to understand the legal. system but also had to be understood by it. She said that further work was necessary on articles 12, 13 and 14. 52. The representative of the Government of China stated that articles 12, 13 and 14 were important and agreed with their contents. He considered however that since they contained cultural rights they should be placed after Part VI of the draft which contained civil and political rights. He said that articles 16, 24 and 29 dealt with similar rights as articles 12, 13 and 14 and should therefore be grouped together. 53. The representative of the Government of Mexico stated that article 14 should be placed in a broader framework and suggested comparison with article 12 of ILO Convention 169 with regard to access to justice. She said she supported the suggestion made by Switzerland. The representative of the Government of Ecuador stated that in general his Government had no objections to articles 12, 13 and 14 but that he reserved the right for more precise drafting in future. 54. The representative of the Government of Chile stated that his Government could adopt the present wording of articles 12, 13 and 14 without much difficulty. He stated that he considered Brazil's suggestion to delete the words "archaeological and historical sites" not very well founded. He suggested looking for new wording that took concerns into account but retain the two concepts. He also suggested adding to article 12 a paragraph similar to that of paragraph two of articles 13 and 14 to allow States to determine how to protect and preserve. 55. The representative of the Grand Council of the Crees reminded participants of the practical importance of articles 12, 13 and 14 and that the articles were not abstract but placed in the draft because of specific problems indigenous peoples faced which had not been adequately protected by existing international instruments. With regard to a concern expressed by France he stated that nothing in the draft prevented the use of the national language. 56. The representative of the Government of Malaysia said that his Government accepted the general thrust of articles 12, 13 and 14. With regard to article 12 he said that he shared the concern of Japan concerning property ownership and requested that a clear definition of "spiritual property" be provided. Concerning article 13 he said that the right to repatriation had to be qualified according to the circumstances and more narrowly defined He said that the "measure" to be taken by States according to the second paragraph of article 13 should be defined. He also requested further clarifications of the second paragraph of article 14 which he considered vague and in this respect referred to the terms "political proceedings" as being unclear. 57. The representative of the Government of Sweden said that her Government had some difficulties with regard to "restitution" as found in article 12 and suggested the deletion of the text after the word "literature". She said that the traditions referred to in article 13 should not conflict with universal human rights norms and suggested insertion of the phrase "in accordance with recognized human rights norms" after the word "ceremonies". She stated that the second paragraph of article 14 was unclear in its use of the phrase "where necessary" and that measures only have to be taken when there is a real problem of communication. 58. The representative of the Government of the Philippines stated that the second paragraph of article 14 should be clarified and suggested that articles 12, 13 and 14 be consolidated in 1 or 2 articles. She said her Government shared the concerns expressed by Brazil concerning the protection of archaeological and historical sites and also raised the issue of the meaning of spiritual property. 59. The representative of the Government of The Netherlands associated himself with the concerns of France, Switzerland and Sweden that the exercise of the rights contained in articles 12 and 13 could not run contrary to general human rights law. He therefore suggested the inclusion of a safeguard clause. 60. The representative of the Government of Brazil fully supported adoption of article 24 as it stands considering that the issue of traditional knowledge was of utmost importance. He stated that article 29 needed to be strengthened and proposed the addition of a third paragraph which would read: "They have also the right to a fair and equitable sharing of the benefits arising from the utilization, including commercial utilization, of their traditional knowledge". 61. The representative of the Government of Canada stated that article 12 identified two elements: the protection and development of culture; and the restitution and return of property, which perhaps should be addressed in two separate paragraphs. He said that his delegation considers that States should facilitate, subject to national laws, the efforts of indigenous people to maintain, protect and develop manifestations of their cultures, while respecting the legitimate rights of others. He stated that there was a positive evolution at both international and national levels with respect to the return of cultural property on which the provisions of the declaration should build. With regard to article 13 he noted that, Canada supported the principles through access to sacred sites in privacy would require a balancing of interests which respects the legal rights of others under domestic laws. He stated also that his delegation fully agreed with the principle contained in the first paragraph of article 14. The second paragraph dealt with civil and political rights, rather than cultural, religious and linguistic rights, and he suggested it be moved to Part V of the draft. He believed that on this issue there should be consistency with international instruments, notably international humanitarian law. He considered it was unclear what "other appropriate means" might be. Furthermore, he stated that Canada did not agree with the suggestion of the Technical Review to move article 24 to Part III considering that traditional medicine's complementary use could be better emphasized by leaving the article in Part V. He suggested a broad interpretation of the second paragraph of article 24 to address the issues of nutrition, pre- and post-natal care and substance abuse. He suggested adding a paragraph on children in Part V. He continued by adding his support to the suggestion of the Technical Review that article 29 on intellectual property be moved to Part III. At present only a broad statement of principle should be included to the effect that indigenous people have the right to a fair and equitable sharing of the benefits arising from commercial utilization of their knowledge along with acknowledgment of third parties. The Working Group must also take account of the outcome of ongoing and future work in otter fore. 62. The representative of the Government of Finland stated that the second paragraph of article 14 should be amended to the effect that indigenous peoples can use their own language not just one they can understand. He also stated that the contents of article 29 were encouraging. 63. The representative of the Government of France stated that the right to traditional medicines and health practices as contained in article 24 should be in line with standards of public health set by organizations such as the World Health Organization. She also stated that the scope of the right to the "protection of vital medicinal plants, animals and minerals" contained in article 24 should be defined. She said that article 29 contained provisions for positive discrimination and thus gave rise to certain concerns. She also said that she wanted more discussion and clarity on the measures to be provided by States. 64. The representative of the Government of Australia said that all the comments by his delegation were preliminary and that his government would wish to give further consideration to the draft before taking final positions. He expressed his Government's concerns over the rights of third parties to ownership within the framework of article 12. He also expressed the general concern with regard to the feasibility and practicality of restitution concerning past acts and pointed out that there was a link with article 27 that dealt with restitution of land. He stated that article 13 was generally consistent with international and domestic Australian law but would wish an exchange of views on the content of the term "intellectual property". With regard to article 14 he expressed concern with regard to eventual resource implications and stated with regard to the second paragraph that it was too broadly worded within the phrase "whenever any right of indigenous peoples may be threatened", especially the word "may". With regard to the second paragraphs of article 13 and 14 he stated that these were prescriptive and did therefore not belong in a declaration and furthermore pointed out that in a federation it was not just the central Government that had to take measures to protect rights. On article 24 he requested further clarification with regard to the right laid down in the first paragraph and also wished to know the meaning of the term "special measures" in the second paragraph of article 29. In this respect he wondered whether this term carried the same meaning as in the Convention on the Elimination of All Forms of Discrimination. He concurred with Canada that recent and ongoing developments had to be taken into account with regard to the protection of intellectual property, particularly under the Convention on Biological Diversity. 65. The representative of the Government of Peru stated that his Government fully agreed with the text of article 24 but considered that article 29, although fundamental, could be improved and strengthened. In this respect he referred to Brazil's proposal to add a paragraph as positive. 66. The representative of Argentina suggested amending article 12 by replacing the phrase "in violation of their laws" to "in violation of the laws". With regard to article 13 she suggested adding the phrase "as appropriate" after the phrase "States shall take effective measures". She stated that her Government supported article 14 but was concerned about the resource and other implications. With regard to article 24, she stated that its application should not infringe on State regulations. 67. The representative of the Government of Malaysia supported article 24 but wanted further discussion on the scope of the rights to use traditional medicines and health practices to ensure that they do not harm the health of the practitioner. With regard to article 29, he expressed some doubts on the phrase "special measures". 68. The representative of the International Organization of Indigenous Resource Development suggested specific wording for articles 12, 13, 14, 24 and 29 by reading out the text of the articles in the draft. 69. The representative of he International Indian Treaty Council called for the adoption of the draft as adopted by the Sub-Commission as minimum standards for the protection, promotion and recognition of the rights of indigenous peoples. She wanted it to go on record that her organization opposed any changes in the wording of articles 12, 13, 14, 24 and 29 as they were an integral part of the draft. 70. The representative of Tupaj Katari stated that article 12 tried to establish legal protection for cultural traditions and customs in order to preserve the identity of indigenous peoples. He stated that the Special Rapporteur on the protection of the cultural heritage of indigenous people had placed her study within the overall framework of self- determination and said that the Working Group should do the same. He suggested moving articles 24 and 29 to Part III. The representative of the Ikce Wicasa Ta Omniciye stated that the text of articles 12, 13 and 14 should, as minimum standards, not be amended. 71. The representative of the United States of America stated his support for the basic thrust of the articles. He stated however that the wording of article 12 was overbroad, in particular the open ended obligation for restitution of cultural and similar property which is at present not a rule of international law. He stated that his Government supported articles 13 and 14 and believed that they could be adopted with some minor drafting changes emphasizing the aspirational nature of the document. He stated that his Government also believed that article 13 could be strengthened by adding the phrase "and associated funerary articles" at the end of the first paragraph. With regard to article 29 he said that individuals belonging to indigenous populations should be accorded rights with respect to intellectual property but that the second paragraph appeared to extend the right of indigenous people beyond those normally accorded to other members of the State. 72. The representative of the Government of the Russian Federation supported Sweden in that the declaration could not contradict existing human rights and noted that a balanced approach must be taken between national laws and the rights of indigenous people. He noted that his delegation had no substantial objections to articles 12, 13 and 14. His delegation felt that the second paragraph of article 14 needed some work and could perhaps be regrouped with articles 24 and 29. He suggested that the second paragraph of article 24 be redrafted to make its central aim of health protection clearer and could be grouped with article 28 that contained similar language. With regard to article 29 he believed that an exhaustive list was unnecessary and that general terms would serve the objectives of the document better. 73. The representative of the Indigenous Woman Aboriginal Corporation noted that the draft did not invent new human rights standards by stating that articles 14.3, 18.1 and 27 of the International Covenant on Civil and Political Rights, article 18 of the Universal Declaration on Human Rights, article 1 of the Declaration on the Elimination of All Forms of Racial Discrimination, articles 12 and 28.3 of ILO Convention 169, and article 14.3 of the Minorities Declaration were all similar to articles 12, 13 and 14. She also said that translation of needs and aspirations into rights did not always allow for the use of similar language in other instruments. In response to governmental concerns over the resource implications of certain articles she pointed out that the implementation of all rights had resource implications. With regard to governmental concern over possible contradiction between the draft and existing human rights standards she called for more respect of Governments when they speak of cultures they had little knowledge of, pointed out that Aboriginal customary law was dynamic, and said that certain rights in the draft, like articles 1, 5 and 8, ensured consistency. 74. The representative of the Government of Chile pointed out that Chile looked at article 24 as a right of indigenous peoples to their traditional medicines and health practices using their plants and animals, while the second paragraph provided them with a choice of health care. He said that his Government generally supported article 29 but noted that the Spanish version read "Tienen derecho a que se adopter medidas especiales" while the English version, which he regarded to be the original, read "They have the right to special measures". He urged the secretariat to review the different language versions to avoid discrepancies. 75. The representative of the Government of Norway noted that Part III was perhaps the least problematic of the draft. He stated that Norway supported article 12 but would like to see certain terms, like restitution, clarified. With regard to article 13 he also expressed support but requested a more careful formulation to take into account the need for privacy in more areas than just religion. Concerning article 14 he noted that the second paragraph was taken from article 12 of ILO Convention 169 and that any amendment should be careful not to fall below this. He suggested that articles 24 and 29 be moved to Part III. 76. The representative of the Cordillera Peoples Alliance said that articles 12, 13 and 14 were all very important in light of efforts undertaken to control indigenous knowledge, traditional medicine, and cultural and ceremonial expressions of indigenous peoples by national and international corporations. She called for adoption of the draft as presently drafted. 77. The representative of the Chikasaw Nation said that the Working Group would do well to take the opinions of indigenous peoples into account considering that the United Nations may not be well informed about their problems, while their ideas came from experience. He called for the adoption of articles 12, 13 and 14 as presently drafted. 78. The representative of the World Council of Churches suggested changing the phrase "religious and spiritual property" to "religious and spiritual assets" in article 12. With regard to article 13 he felt it appropriate to add the words "communally" or "collectively" after the phrase "in privacy" since the ceremonies referred to were usually held that way. Concerning article 29 he noted that the phrase (as drafted in the Spanish version) was a reflection of the right of self-determination. 79. The representative of the New South Wales Aboriginal Land Council presented a joint statement on behalf of the Australian indigenous delegations. He stated that article 24 did not create new standards and referred in this respect to article 12 of the International Covenant on Economic Cultural and Social Rights and article 25 of ILO Convention 169. He also sated that article 29 did not create new standards and referred to Chapter 26 of the Rio Declaration, the preamble and article 8 (j) of the Convention on Biological Diversity, principle 13 adopted at the Fourth General Assembly of the World Council on Indigenous Peoples, the Mataatua Declaration on Cultural and Intellectual Property Rights, and the Suva-Workshop recently held in Fiji. 80. The representative of the World Council of Indigenous Peoples stated that indigenous heritage should be protected within the boundaries of States and called for the adoption of articles 24 and 29 as they stood. 81. The representative of the Indigenous World Association also called for the adoption of articles 24 and 29 especially in light of his concerns of the continued development of archaeological science and its effects on indigenous peoples' sacred sites. 82. The representative of the Association Nouvelle de la Culture et des Arts Populaires called for the adoption of articles 12, 13, and 14 as they were presently drafted since they were of critical importance. 83. The representative of the Chittagong Hill Tracts Peace Campaign stated that cultural rights depended on political rights and that therefore the draft should be considered as a whole. ARTICLES 1, 2, 43, AND 42, 44, 45 84. The Government of the United States of America said that Article 1 is acceptable and should be widely supported, subject to satisfactory resolution of the use of the term "peoples." The U.S.A. stated that it is important to emphasize that indigenous people, like all persons, are entitled to enjoy all basic human rights and fundamental freedoms. The U.S.A. also said that it finds the general thrust of Articles 2, 42 and 44 acceptable. He stated that article 42 might encourage States to take measures beyond the rights affirmed and the policies agreed to in the declaration. Article 43 was said to be acceptable as drafted. 85. The Government of New Zealand expressed its support for the intent of Articles 1 and 2. The representative of New Zealand also expressed support for Article 43, and said that it was important that the rights and freedoms referred to in the draft declaration should apply equally to female and male indigenous people. The principles underlying articles 42, 44 and 45 were said to be acceptable for New Zealand. However, it was stated that it is important to ensure that the language in the draft declaration was consistent with existing international human rights instruments. 86. The Government of Finland expressed its strong support for Articles 1, 2, 42, 43, 44, and 45. The representative of Finland said that Article 43 could be moved to Part I of the draft. Besides that the six articles were acceptable without any amendments, changes or deletions. Finland also stated that it is important that the draft declaration defines minimum standards for the survival, dignity and well-being of indigenous peoples, and that it complements and strengthens existing rights pertaining to indigenous peoples. 87. The Government of China said that the draft declaration should not be diluted if it is to give effective protection to indigenous people. China stated that a definition of the term "indigenous people" should be included in Part I of the draft declaration, in order to identify the beneficiaries of the draft. China said that the "indigenous people" could be defined as follows: "(i) the original peoples inhabiting in certain countries or geographical regions and their descendants when these countries and regions have been colonized, conquered, occupied and ruled by colonial settlers from other countries, and these peoples retain some or all of their own social, economic, cultural and political institutions; (ii) peoples inhabiting exclusively in certain geographical regions with unique style of living, and thus regarded as indigenous by other inhabitants and governments of the countries in which they live, and they identify themselves as indigenous." With regard to Article 2, China expressed that it should be strengthened, and proposed that the words "adverse discrimination" be replaced with stronger wording saying that indigenous people should be free from any practices aiming to discriminate them and that all such practices must be eliminated. 88. The Government of Brazil stated its support for the intent of Articles 1, 2, 42, 43, 44 and 45. The representative of Brazil said that they support the adoption of Article 1 as it stands, while Article 2 could be improved by deleting the last part of the sentence after the words "dignity and rights" as in their view it was redundant. With regard to Article 42, the representative of Brazil said that the term "minimum standards" should be replaced with the term "indicative standards." The language in Articles 43, 44, 45 was endorsed by Brazil. 89. The Government of France made references to their positions expressed during the first session (1995) of the Working Group. The representative of France stated that collective rights do not exist in international human rights law, and therefore they have reservations with regard to those articles which aim to establish collective rights. In their view human rights are individual rights. 90. The Government of the Netherlands expressed their concern for a possible imbalance between individual and collective rights as presently stated in Articles 1 and 2. The representative expressed the view that many of the collective rights accorded by the draft declaration, as currently drafted, will not be applicable to individuals. The inclusion of a general safeguard clause for individual rights in the draft should be considered. Article 8 (2) in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities was mentioned as a possible model for such clause, where it is said the exercise of the rights set forth in the Declaration shall not prejudice the enjoyment by all persons of universally recognized human rights and fundamental freedoms. 91. The Government of Denmark stated its strong support for Articles 1, 2, 42, 43, 44, and 45 as presently drafted, and reiterated its supports for the entire draft in its present form. Furthermore, Denmark said that it does not support the idea of including a definition of "indigenous peoples" in the draft declaration. 92. The Government of Australia said that there appeared to be no significant difficulties with Articles 1 and 2. Article 1 was said to be straightforward, while the provisions of Article 2 were already included in Australian legislation. Collective rights, including the use of the term "indigenous peoples", did not create any problems for Australia. Articles 43 and 44 were said to be acceptable for Australia. With regard to Articles 42 and 45, Australia was of the opinion that they should be elaborated further. 93. The Government of Japan expressed its support for Articles 1, 2, 42, 43, 44 and 45. However, the representative of Japan also stated its support for the views expressed by the Government of France that they understand human rights to be individual rights. The representative of Japan also expressed the view that a definition of "indigenous people" should be included in the draft declaration, and indicated that the Cobo-definition or the relevant provisions in ILO Convention No. 169 could be used on the basis of discussion in this regard and also pointed out that the definition should be flexible in accordance with the diverse situations of the world's indigenous people. 94. The Government of Sweden stated its general support for Articles 1, 2, 42, 43, 44, and 45. However, Sweden also said that it associates itself with the view expressed by France that human rights are individual rights only. 95. The Government of the Russian Federation expressed its support for Articles 1, 2, 42, 43, and 44. However, the representative of the Russian Federation expressed the view that the wording of the references in Article 1 to the United Nations Charter and other instruments, should be brought into conformity with the wording in other human rights instruments. Furthermore, the representative of the Russian Federation expressed reservations with regard to the concept of "future rights" in Article 44, and whether Article 45 should be included in its present form. The wording of Article 9 (2) in the Declaration on the Right to Development was mentioned as possible language to be included in the draft declaration. 96. The Government of Mexico expressed its support for the contents of Articles 1, 2, 42, 43, 44, and 45. With regard to Article 42, the representative of Mexico also said that the legal scope of the provision should be emphasized. 97. The Government of Peru expressed its support for all of the six articles. However, it was suggested that Article 43 be moved to Part I of the draft declaration. Furthermore, it was said that Article 1 of ILO Convention No. 169 could be considered for inclusion in the draft. 98. The Government of Canada said it is important that the Articles are consistent and coherent with existing human rights instruments. Canada indicated that a provision on individual rights therefore should be included in Article 1. He noted that recognition of certain rights of indigenous people as collective rights merit further consideration and that this should be done on an article by article basis. Canada also expressed its support for the content of Article 2. Canada indicated that the terminology in the draft declaration, dealing with individual and collective concepts, should be closely reviewed. Furthermore, with respect to article 42, Canada said this article should be considered in connection with Article 37, keeping in mind the need for flexible and progressive implementation. Canada supported the proposal to move Article 43 to part I. Canada said that it would interpret Article 45 as referring to, inter alia, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations. 99. The Government of Norway expressed its strong support for Articles 1, 2, 42, 43, 44, and 45, and supported the idea that Article 43 could be moved to Part I. 100. The Government of Chile expressed its support for Article 1. However, the representative said that Chile would like to see the text harmonized with relevant provisions in ILO Convention No. 169. Chile stated its support for Articles 2, 43 and 44 as presently drafted. As to Article 42, Chile suggested postponing further discussion until there is greater clarity on the content of the draft declaration. With regard to Article 45, Chile expressed the view that it is necessary to spell out its scope, due to its impact on the interpretation of the right to self- determination. 101. The representative of the Association Nouvelle de la Culture et des Arts Populaires, expressed his full support for Articles 1, 2, 42, 43, 44, and 45, and emphasized that these provisions must be regarded as minimum standards. Furthermore, it was stated that a definition of "indigenous peoples" could lead to a de facto exclusion of certain indigenous groups. 102. The representative of the International Organization for Indigenous Resource Development expressed the view that there should not be any problems with regard to collective indigenous rights, since individual and collective rights can exist side-by-side without any problems. [Ed. Note: Not certain why this paragraph is numbered 57] 57. The representative of the Inuit Circumpolar Conference ICC) stated their full support for Articles 1, 2, 42, 43, 44, and 45, and said that these Articles cannot be weakened. ICC also stated that it supports the entire draft declaration as it stands, and that the draft has to be regarded as minimum standards for the rights of indigenous peoples. 103. The representative of the Aboriginal and Torres Strait Islander Commission (ATSIC) stated in a joint statement on behalf of indigenous organizations and indigenous representatives of Australia, their support for the Articles under discussion, as well as for the entire draft declaration in its present form. It was said that the international community has not attempted to define the terms "peoples" and "minorities." Moreover, they opposed any attempts to exclude particular indigenous peoples from the protection of the draft declaration. 104. The representative of the Chittagong Hill Tracts Peace Campaign expressed his strong support for the Articles 1, 2, 42, 43, 44, and 45 in their present form. It was emphasized that the term "indigenous peoples" must be kept in the text of the draft declaration. 105. The representative of the Indigenous World Association stated his support for the entire draft declaration, including Articles 1, 2, 42, 43, 44, and 45, which from their point of view represents minimum standards for indigenous rights. 106. The representative of the Grand Council of the Crees identified the preamble of the draft declaration as an introduction and interpretive element to the draft. He strongly supported Articles 1, 2, 42, 43, 44, and 45. The representative commented on the issue raised by France namely that all human rights are individual rights and that there is no need for collective rights, by saying that it only represents one point of view, and one which is not universally accepted. He continued by saying that for instance when racial discrimination is practiced, it is directed against groups, individuals suffer because they are perceived by their attackers as members of a group. 107. The representative of Movimiento Indio "Tupaj Katari" supported Articles 1, 2, 42, 43, 44, and 45. He expressed the view that nothing prevents indigenous peoples from having collective rights, and that these rights should be recognized in the draft declaration. Furthermore, he said that there is no need for a definition of indigenous peoples. Some concrete suggestions aiming to improve the wording of the text were submitted, including, to insert the word "born" between the words "are" and "free and equal" in Article 2. 108. The representative of the International Organization of Indigenous Resource Development expressed its support for Articles 1, 2, 42, 43, 44, and 45 and read out the present text of those articles. He suggested that the present text should remain unchanged. 109. The representatives of the International Indian Treaty Council, the International Alliance of the Indigenous and Tribal Peoples of Tropical Forests, MAA Development Association, and Lumad Mindanaw Peoples Federation all called for an adoption of Articles 1, 2, 42, 43, 44, and 45 in their present form, without any changes, amendments or deletions. ARTICLES 5, 9, 32 110. The Government of Fiji stated its strong support for the entire draft declaration as it is currently worded, including Articles 5, 9, and 32. Fiji expressed the view that a definition of indigenous peoples is neither necessary nor desirable. Fiji also expressed its views that if the negotiations move in the direction of favouring a definition, they will argue strongly for a definition which is flexible and all-inclusive rather than one which is based on the historical and colonial experience of only some indigenous peoples. 111. The Government of Finland stated its support for Articles 5, 9, and 32, and said that it is ready to adopt them as currently drafted. As to Article 32, Finland referred to its statement at the first session (1995) of the Working Group, in which it stated that indigenous citizenship as proposed in Article 32, in addition to the citizenship of the State of domicile, does not create any legal problems for Finland. 112. The Government of Brazil proposed that Article 5 should read as follows: "Every indigenous individual has the right to the citizenship of the State to which he belongs." With regard to Article 9, Brazil proposed the following text: "Indigenous people have the right to belong to an indigenous community, in accordance with the traditions and customs of the community concerned No disadvantage of any kind may arise from the exercise of such a right." As to Article 32, Brazil said that it could be deleted without any problems, since the provisions are contained in other articles. 113. The Government of Australia said that there appeared to be no difficulty with Article 5, which is a restatement of Article 15 of the Universal Declaration on Human Rights, and Article 24 (3) of the International Covenant on Civil and Political Rights. With regard to Article 9, Australia expressed the view that further discussion is needed in the Working Group on the inclusion and meaning of the word "nation." It was said that Australia would not be able to support the term "nation" if its meaning goes beyond the concept of "first nations." Furthermore, Australia said that there is a need to further clarify the meaning of the term "citizenship" in Article 32, and how the term relates to use of the word "nationality" in Article 5. With regard to sub- paragraph 2 of Article 32, Australia expressed that the Working Group could perhaps explore the possibility of combining this paragraph With Article 19. 114. The Government of Malaysia expressed its support for Article 5, while it said that Articles 9 and 32 are not applicable for Malaysia. As to Article 9, Malaysia said that there is a need to further clarify the meaning of the word "nation." 115. The Government of Brazil expressed the view that the meaning of the term "nation", in Article 9, has to be clarified. With regard to Article 32, Japan stated their support to the view expressed by Brazil that the Article could be deleted. 116. The Government of Ukraine expressed its general support for the draft declaration. As to Article 32, Ukraine said that the first sentence in Article 32 is not acceptable to them, due to its inconsistency with Ukrainian legislation. 117. The Government of Canada expressed its support for the inclusion of Article 5 in the draft declaration, and said that Canada understands this right to apply to nationality within an existing state. With regard to Article 9, Canada recognised the importance of self-identification and community acceptance, but said that the notion of a "right to belong" needs some clarification as to how it would be consistent with existing human rights standards in international law. As to Article 9, "Canada suggested a more explicit reference to the right of each individual to a nationality. Canada indicated that the Declaration should be flexible enough to allow for varied and changing membership criteria. Also, it noted that the communities, right to determine membership, as with all other aspects of government, must be subject to an individual's rights to fairness. Canada expressed the view that the Working Group should consider whether Article 32 should be combined with Articles 8 and 9, or whether the entire Article is superfluous. 118. The Government of Ecuador stated that Article 5 relates to Constitutional matters. In Article 9 the delegation considered that the term "indigenous nations" should be revised to avoid misunderstanding. As to Article 32, Ecuador said that it has problems with the term "indigenous citizenship" since in Ecuador they only have citizenship of the State. 119. The Government of the United States of America expressed its support for Article 5, and that the right to a nationality is already enshrined in Article 15 of the Universal Declaration on Human Rights, and Article 24 (3) concerns of ICCPR. However, it was said that the text of Article 5 should be clarified to ensure that its scope State nationality. With regard to Article 9, U.S.A. expressed its endorsement of the concept that individuals have the right to self-identification and to exercise this right in community with others. The question of an individual's right to non-discrimination and due process in questions of membership was identified as something the Working Group should look into. As to Article 32, U.S.A. stated that it agrees with the general thrust of the Article. 120. The Government of Norway expressed its support for Article 5, and said that such a provision is already included in the Universal Declaration on Human Rights, the Convention on the Rights of the Child, and in the ICCPR. Norway also stated its support for Article 9. As to Article 32, Norway said that the provision should be clarified further, e.g. if it is to be understood as giving an open- ended choice to determine nationality. However, the right to determine indigenous citizenship was said not to create any problems for Norway, as such a system is already established in Norway via the Saami Electoral Register. It was also said that it should be considered whether Article 32 could be merged with Article 5. 121. The Government of Switzerland expressed its support for Articles 5, 9, and 32. As to Article 9, Switzerland said that the meaning of the term "nation" needs further clarification. It was said that the Working Group should consider merging Article 32 with other relevant articles. 122. The Government of Sweden said that Articles 5, 9, and 32 overlap one another, and that the provisions therefore should be clarified further. As to Article 32, Sweden stated its support for the view expressed by the Government of Australia that certain elements need to be clarified, such as dual citizenship. 123. The Government of Japan expressed its support for the Australian position about article 9, in particular regarding the concept of "nation". It also shared the concern expressed by Brazil about article 32. 124. The Government of the Russian Federation said that Articles 5 and 9 are acceptable as currently drafted. The representative said that the distinction between the term "citizenship" in Article 32 and the term "nationality" in Article 5 must be clarified. 125. The Government of Argentina expressed its support for the general thrust of Article 9. However, the representative stated that Argentina would like to see the term "nation" clarified further. As to Article 32, Argentina expressed the view that the meaning of the term "citizenship" need further clarification, as it has an important legal connotation. 126. The representative of the International Organization of Indigenous Resource Development, expressed its support for Articles 5, 9, and 32 by reading the present text of those articles and suggesting that the present text should be kept unchanged. 127. The representative of the Aboriginal and Torres Strait Islander Commission (ATSIC) expressed his strong support for the Articles 5, 9, and 32 as currently drafted. 128. The Aboriginal and Torres Strait Islander Social Justice Commissioner presented a joint statement, on behalf of indigenous organizations and indigenous representatives of Australia, in which he expressed strong support for Articles 5, 9 and 32. 129. The representative of the Saami Council expressed his strong support for Articles 5, 9, and 32. He also referred to the statement of Sweden, that Sweden associates with the view that human rights being individual rights only. The Saami Council representative said that the Swedish position, with regard to collective rights, is inconsistent with national Swedish legislation in which the Saami reindeer herding rights are recognized as collective Saami rights. 130. The representative of the International Indian Treaty Council called for the adoption of the draft declaration, as approved by the Working Group on Indigenous Populations and the Sub-Commission, in its entirety without any changes, amendments or deletions as minimum standards protecting and promoting the rights of indigenous peoples. She stated that they would not accept any changes whatsoever in the text or wording of Articles 5, 9, and 32, as they are integral parts of the entire document as it now stands. 131. The representative of the Ainu Association of Hokkaido said that the draft declaration should be adopted by the Working Group as it stands. The Ainu representatives emphasized that the draft declaration should be adopted without any definition of "indigenous peoples." 132. The representative of the MAA Development Association stated that they support the present wording of Articles 5, 9, and 32. It was said that the right to nationality (Article 5) is already found in Article 15 of the Universal Declaration on Human Rights, Article 24 (3) of the ICCPR and in Article 7 of the Convention on the Rights of the Child. 133. The representatives of the World Indigenous Association, International Alliance of the Indigenous and Tribal Peoples of Tropical Forests, Association Nouvelle de la Culture et des Arts Populaires, Comision Juridica Para el Autodesarrollo de los Pueblos Originarios Andinos, and Indian Confederation of Indigenous and Tribal Peoples all expressed their strong support for Articles 5, 9, and 32 as currently drafted, and called for their adoption in their present form. ARTICLES 15, 16, 17 AND 18 134. The Government of Estonia expressed its support for Articles 15, 16, 17, and 18. The representative said that her delegation does not have any problems with Articles 16, 17, and 18. As to Article 15, the representative underlined the importance of State-provided education, and stated that it is important that indigenous peoples have adequate opportunities to learn or have instruction in their mother tongue. It was said that the Working Group should consider a language which is closer to the provision in Article 4 (3) of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. 135. The Government of New Zealand expressed its support for the thrust of Article 15. However, it was said that the Working Group may need to consider if account needs to be taken of the fiscal constraints operating upon States. As to Article 16, New Zealand said that it does not create any major problems for them. With regard to Article 17, New Zealand expressed its support for the underlying intent of this article insofar at it confirms that indigenous people have the same right as any person or group to establish their own media in their own language. 136. The Government of Brazil stated that Article 15, which deals with the important issue of the right to education, is generally consistent with Brazilian legislation. It was said that the establishment and control of educational systems and institutions by indigenous people could create some administrative difficulties. As an example the representative mentioned that in Brazil they have around 170 different indigenous languages, and that most of these languages are spoken by less than 100 individuals. The representative stated that Article 15 should take into account this kind of problem, and emphasized that the main objectives of the Article are to secure the right to all levels and forms of education including bilingual education. As to Article 16 and 18, Brazil expressed support for their adoption as currently drafted. Brazil also stated its general support for Article 17. However, it was proposed that the words "in accordance with national legislation and regulations" be included at the end of the first sentence in Article 17. 137. The Government of Canada stated its support for Article 15, and expressed the view that indigenous people should gain greater control over education. It was also said that education is important not only for children but also for youth and adults, and that the scope of paragraph one in Article 15 should be expanded by referring to indigenous individuals. It was also said that it might be preferable if the article referred to "a right to access to education at all forms and levels". Furthermore, it was said that a new second paragraph in Article 15 could affirm the right to establish and control educational systems and institutions providing education in indigenous languages in a manner appropriate to indigenous culture, which respect minimum educational standards. Indigenous children living outside their communities should have adequate opportunities to education in their own culture and language, where demand and resources allow. With regard to Article 16, Canada expressed its support for the provisions in this article. However, it was said that further consideration is required. Canada expressed its support for the provisions contained in Article 17, but it suggested that the second paragraph should be moved to Article 16. Canada also expressed its support for the content of Article 18. However, it was suggested moving the provision to Part V of the draft declaration. It was also said that Article 18, which deals with labour rights, should refer to the rights of indigenous individuals rather than indigenous peoples. Moreover, Canada suggested the inclusion of a special reference to indigenous children in Article 18, stating that indigenous children will be protected from economic exploitation or work which is harmful to the child's health, education or development. Canada said that reference to discriminatory conditions in Article 18 should not affect a State's ability to implement affirmative action or equal opportunity programmes. 138. The Government of Chile stated its support for the principles enshrined in Article 15. However, the representative expressed the view that there is a contradiction in Article 15, between paragraph one in which it is said that indigenous people have the right to control their educational system, and paragraph three which obliges States to provide appropriate resources for these purposes. As to Articles 17, Chile expressed the opinion that the language in this article should be revised. With regard to Article 18, Chile stated its support for the general thrust of this article; however, the language should be revised in order to bring it into line with Article 20 of ILO Convention No. 169. 139. The Government of Sweden expressed its general support for Articles 15, 16, 17, and 18, and emphasized the importance of Part IV of the draft declaration. The concept of the right to education, as stated in Article 15, was said to be of great importance. The representative referred to the goal of the International Decade of the World's Indigenous People, in which education is mentioned as one of the major aspects. As to Articles 16, 17, and 18, Sweden expressed its support for the general thrust of those provisions. 140. The Government of France expressed concern with regard to Article 15, and said that the establishment of a parallel educational system puts into question the existing legislative provisions which states that State-provided education shall be given in French. As to Article 17, France expressed its support for the principle of the freedom of expression. However, it was said that this right should be guaranteed for all individuals, including indigenous individuals, rather than indigenous peoples as such. 141. The Government of Peru expressed its general support for Article 15, however, certain aspects need to be further clarified and brought into line with Part VI of ILO Convention No. 169. As to Articles 16 and 17, Peru said that it does not have any problems with those as currently drafted. With regard to Article 18, it was said that the general thrust did not create any problems. However, it was said that Article 18 could be strengthened by bringing it in line with Article 20 of ILO Convention No. 169. 142. The Government of Japan indicated that it would have problems with the wording "States shall take effective measures" in Articles 15, 16, and 17, and that the Working Group should consider therefore more appropriate wording for a declaration of a non-binding nature. As to Article 15, Japan stated its support for the view expressed by France. With regard to Articles 16 and 18, Japan indicated that it required further clarification, in particular of the concept of international labour law in Article 18. 143. The Government of Ecuador stated its support for the general thrust of Articles 15, 16, 17, and 18. As to Article 18, Ecuador said that the wording should reflect the fact that international labour law is evolving and not a set of static norms. 144. The Government of Finland expressed its strong support for Part IV in the draft declaration, and emphasized the importance of having Articles 15, 16, 17 and 18 in the draft. 145. The Government of Australia emphasized the importance of rights to education to indigenous peoples and of the right of indigenous communities to establish their own education systems, schools and media. Furthermore, Australia said that in relation to Articles 15 and 16, it has already progressed a long way toward providing opportunities for education in indigenous languages and the use of traditional teaching methods. As to Article 17, Australia said that it was largely consistent with current Australian policy and practice, however, it was said that the term "access" should be clarified further and asked why paragraph one is not confined to State-owned media as is the case for paragraph two. With regard to Article 18, Australia said that the article should be more clearly worded so as to ensure to indigenous peoples the benefit of those international labour law instruments ratified by States. 146. The Government of Colombia expressed its support for the general thrust of Articles 15, 16, 17, and 18. As to Article 15, the representative proposed that it should begin in the following manner: "All indigenous peoples have the right to all levels and forms of State-provided education and the right to establish and control their educational systems and institutions providing education in their own languages and in accordance with their own teaching and learning methods. Indigenous children also have this right. Indigenous children living outside their communities shall have access to education in their own languages and cultures. States shall adopt effective measures to secure sufficient resources aimed at such purposes, and shall have the responsibility to guarantee the education and exercise of cultural diversity with regard to education." Moreover, Colombia proposed the inclusion of the following sentence at the end of Article 18: "States shall adopt adequate measures to respect cultural and ethnic diversity and shall take this into account in matters relating to labour conditions and standards." 147. The Government of the United States of America expressed its general support for the basic premises of Articles 15, 16, 17, and 18, and said that those articles are of key importance. As to Article 15, the representative stated that non-discriminatory access to public education is a right that should be enjoyed by indigenous persons in common with other members of the community. Furthermore, indigenous persons should have the right to create and administer their own educational institutions, if they choose to do so. With regard to Article 16, he that the United States of America supports the general premise of that article, however, Article 16 as currently drafted, infringes on freedom of speech. With regard to Article 17, United States America stated its support for the basic premise of this article. However, it was also said that such special group access rights would conflict with most States' international agreements (governing radio frequencies) and domestic statutes (placing media ownership in private hands.) Finally, United States America stated its support for the basic goals of Article 18. He said that indigenous persons should have the right to enjoy fully all rights established under domestic labor law and international treaties to which the State is a party, without discrimination on account of their indigenous origin or identity. He stated that it might be useful to include the "non-discrimination concept" in the first sub-paragraph of Article 18. 148. The Government of Bolivia expressed its support for Articles 15, 16, 17, and 18. The representative referred to principles and provisions in existing international instruments and the Bolivian Constitution and legislation which already applies for indigenous peoples of Bolivia. As to Article 15, Bolivia stated that it does not agree with the view expressed by France with regard to this article, and that it is necessary to involve indigenous peoples in the administration of the education system in order to fully guarantee the democratic nature of the education system. As to Article 16, the representative said that the text should include the concept of respect for indigenous culture. 149. The Government of Malaysia stated its strong support for Article 15, and said that the Malaysian Constitution states that there shall be no discrimination on grounds of religion, race, descent or place of birth in the administration of any educational institutions. As to Articles 16 and 18, Malaysia expressed its support for the general thrust of the provisions. With regard to Article 17, Malaysia expressed its general support for the article, however, it was said that the scope of the obligation "to take effective measures" should be clarified further. 150. The Government of Argentina expressed its general support for Articles 15 and 18, however, she said that the provisions should be more explicit Furthermore, it was said that provisions of bilingual and cultural education are of great importance. 151. The representative of the International Organization of Indigenous Resource Development, expressed his support for Articles 15, 16, 17, and 18 by reading the present text of those articles and suggesting that the present text should be kept unchanged. 152. The representatives of the MAA Development Association, Union of Bolivian Indigenous Women, Comision Juridica Para el Autodesarrollo de los Pueblos Originarios Andinos, World Council of Indigenous Peoples, International Indian Treaty Council, Indigenous World Association, Society for Threatened Peoples, Consejo de Todas las Tierras, Indian Confederation of Indigenous and Tribal Peoples, Association Nouvelle de la Culture et des Arts Populaires, and Chickasaw Nation all expressed their strong support for Articles 15, 16, 17, and 18 as currently drafted, and called for the adoption of the draft declaration without any changes, amendments or deletions. 153. The representative of the Aboriginal and Torres Strait Islander Commission (ATSIC) presented a joint statement, on the behalf of indigenous organizations and indigenous representatives of Australia, in which he expressed strong support for Articles 15, 16, 17, and 18, and called for the adoption of those Articles as currently drafted. As to Article 15 of the draft declaration, the representative referred to other international instruments where the right to education is protected: in Article 26 of the Universal Declaration of Human Rights, Article 13 of ICESCR, Article 28 (1) of CRC, and Article 26 of ILO Convention No. 169. He also referred to the following instruments with regard to the right to establish educational institutions: Article 13 (3) and (4) of ICESCR, Article 29 (2) of CRC, and Article 27 (3) of ILO Convention No. 169. With regard to Article 16 of the draft declaration, it was said that the provisions contained in this article are already confirmed in existing international human rights instruments: in Article 13 (1) of ICESCR, Article 29 (1) (d) of CRC, Article 4 (4) of the Minorities Declaration, and Article 31 of ILO Convention No. 169. ARTICLES 6, 7, 10, AND 11 154. The Government of Sweden emphasized the importance of Part II of the draft declaration, and said that standards and principles in the draft should be in line with existing international instruments. As to Article 6, Sweden said that this provision should be made as strong as possible, and that it is necessary to look into existing instruments, in order to bring this Article into line with provisions in other instruments. With regard to Article 7, it was said that it is required further clarification regarding the concept of collective rights and how the collective rights in this provisions should be secured. As to Article 10, the representative said that the wording "lands or territories" need to be clarified. Moreover, she said that certain provisions in Article 11 need to be clarified and that Article 11 should also include provisions pertaining to the protection of indigenous peoples during internal conflicts. 155. The Government of Colombia expressed its support for the thrust of Article 11. The representative proposed that the following should be included in Article 11: "States shall adopt effective measures to guarantee the exercise of the collective rights of indigenous peoples to their territories and to autonomy during internal armed conflicts and to guarantee the neutrality of indigenous peoples in such conflicts when they rise and not to compromise their territories as the sites for the escalation of such conflicts." 156. The Government of Malaysia expressed its support for Articles 6 and 7. As to Article 10, Malaysia expressed the view that an absolute prohibition on relocation from lands and territories would not be acceptable for his delegation, and that the provision therefore should be elaborated further. It was said that the wording "forcibly removed" therefore should be narrowly defined. With regard to Article 11, Malaysia noted that in periods of armed conflict, indigenous people will be treated as any other citizens. 157. The Government of Mexico expressed its support for the general thrust of Article 6. However, the representative said that it is necessary to include provisions which allows the authorities to remove indigenous children if, for example, they are being abused sexually. It was said that the State under such circumstances is obliged to separate the children from their families to guarantee their well being, regardless of their being indigenous or not. moreover, Mexico proposed that the wording "any pretext" in sub-paragraph one of article 6 be replaced with the wording "without any justified cause." 158. The Government of Norway said that Articles 6 is not in conflict with existing international instrument, however, it was indicated that the article may need to be revised. As to Articles 7 (b) and 10, it was said that they should be moved to Part VI of the draft declaration. The representative also said that certain ambiguities with regard to provisions dealing with land rights should be clarified. It was mentioned that Articles 25, 26, and 27 speak of "lands and territories which they have traditionally owned or otherwise occupied or used" while Article 10 speaks of "their lands and territories." Furthermore, he mentioned Article 16 of ILO Convention No. 169 which speaks of "the lands which they occupy." As to Article 11, Norway expressed the view that certain provisions in this Article need to be clarified. 159. The Government of the Russian Federation stated its support for Articles 6, 7, and 10, although, he indicated that some editorial amendments are necessary. As to Article 11, the representative said that his delegation would like to have more general provisions aiming to protect civilians rather than categorical demands. 160. The Government of France said that some of the articles would cause constitutional problems for France. In this regard, the representative mentioned that Article 12 of the French Constitution guarantees the right of equality before the law regardless of race or ethnicity. As to Articles 7 and 10, France said that it has problems with the use of the term "lands and territories". With regard to Article 11, the representative said that France cannot accept that certain groups should have special protection and security. 161. The Government of Brazil said that it is ready to accept the general thrust of Article 10 and 11 (c), however, those provisions should recognize that displacements of communities may be necessary for their own safety in cases of war or catastrophe. The representative stated that just and fair compensation have to be assured to displaced indigenous peoples. 162. The Government of Fiji stated its support for the concept of collective rights, which are used throughout the draft declaration, including in Articles 6, 7, and 8. The representative stated that the principle of collective rights is an integral component of indigenous societies and communities, and that international human rights instruments do recognize collective rights. In this regard he referred to Articles 5 and 14 of ILO Convention No. 169, Article 2 (2) of the Declaration on the Right to Development, Articles 19 - 24 of the African Charter on Human and Peoples Rights, and Article 6 (1) of the 1978 UNESCO Declaration on Race and Racial Prejudice. 163. The Government of Finland expressed its support for Articles 6, 7, 10, and 11. The representative said that his delegation supports the views expressed by Norway and Sweden, that the provisions should be made as strong and clear as possible and that the language should be brought into line with existing human rights instruments. As to Article 11 (a), it was said that questions related to the recruitment of indigenous individuals into the armed forces should be elaborated further. 164. The Government of Canada said that the issue of genocide and the removal of children in Article 6 should be considered in conjunction with Article 7, and that the focus of Article 6 should be on the guarantee of the right of indigenous individuals to life, liberty and security of the person. As to Article 7, it was said that this article would be strengthened if it contained a general reference to the Genocide Convention. The representative indicated that the term "ethnocide" raised some concerns for Canada. Furthermore, it was said that the reference "lands and territories" in Article 7 should be included in Part VI. With regard to Article 10, Canada said that there is some confusion regarding the use of the terms "removed" and "relocation." The representative expressed the view that "removed" would suggest a temporary move while "relocation" would suggest a more permanent move. It was said that the Working Group should consider moving Article 10 to Part VI of the draft declaration. As to Article 11, Canada expressed reservations with regard to the concept of "right to special protection", and asked if indigenous people should have protection beyond that provided for under international humanitarian law. The representative said that Article 11 could be an affirmation of the principle that in times of armed conflict, indigenous people have a right to all protections offered by international humanitarian law, in particular those included in the Fourth Geneva Convention. However, it was said that there may be circumstances in which special measures are required to ensure that indigenous people benefit from the protection offered by international humanitarian law, and that the Working Group should consider an inclusion of such a principle in the draft declaration. Canada supported the inclusion of the principle of prohibiting the use of indigenous people against each other in furtherance of domestic policies hostile to indigenous people. It was said that sub-paragraph (c), which refers to "lands and territories" could be moved to Article 10 or Part VI. Finally, the representative expressed the view that the issue of non-discrimination, contained in sub-paragraph (d), is adequately covered in Article 2. 165. The Government of Japan said that certain elements in Articles 6, 7, 10, and 11 must be discussed further. As to Articles 6 and 7, Japan reiterated the view that collective rights do not exist in international human rights law. Furthermore, the representative said that his delegation has problems with the words "under any pretext" in Article 6, and that the language should be into line with the language used in the Convention on the Rights of the Child. It was also said that Articles 7 (b) and (c), and 10 should be discussed further. 166. The Government of Australia expressed its general support for Articles 6 and 7. As to Article 7, Australia said that the Working Group should seek further clarification of the meaning and scope of the term "redress". Furthermore, with regard to Articles 7 (b) and 10 Australia stated its support for the right of indigenous peoples not to be forcibly removed from their lands. In relation to compulsory acquisition of land, the Native Title Act ensures that just terms of compensation would be provided. As to Article 11, the representative said that the Working Group should further consider the term "special protection" for indigenous peoples. It was said that in the case of armed conflict involving Australia, it would be difficult foreseeing a situation which would warrant indigenous people being given preferential treatment over and above that given to non-indigenous people, although, this position was said to be influenced by clarification of the meaning of "protection" in this context. Moreover, Australia said that if the wording "special protection" refers to the fact that in times of armed conflict the possibility of genocide or ethnocide for indigenous communities is more serious than for non-indigenous communities, then consideration should be given in the discussion as to how special care can be taken to ensure protection for indigenous peoples and their cultural identities in this context. With regard to sub-paragraph (b) of Article 11, it was said that the Working Group should take into consideration discussions on that issue in the Working Group on the Draft Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflicts. 167. The Government of Chile expressed its support for Article 6, and said that the draft declaration should clearly spell out the term "distinct people", and bring it into line with Article 1 of ILO Convention No. 169. As to Article 7 (a), (b), (c), and (d), Chile expressed its support for the general thrust of those provisions. However, the representative expressed reservations with regard to the term "cultural genocide", due to the very specific meaning of the term "genocide" under international law. With regard to Article 10, it was said that any transition or removal of indigenous people should only be with heir free and informed consent. The representative expressed reservations with regard to the term "territories". He also expressed reservations with regard to Article 11, which was said to be worded in a discriminatory way. However, it was said that Chile does not have any problems with Article 11 (2) (a) and (b). 168. The Government of Ukraine said it does not have difficulties with Articles 6, 7, and 10, and that with slight amendments they would be acceptable. However, the representative said that her delegation is concerned with the general tone of isolationism and a certain aggressiveness of the draft declaration as a whole, a lack of spirit of cooperation and dialogue between indigenous peoples, governments and the international community. The representative said that her delegation is of the opinion that claims for preferential treatment for indigenous peoples over others will not contribute to inter-ethnic peace and understanding in any society. As to Article 11, Ukraine stated that this article is in contradiction with the Geneva Conventions of 1949 and with the their national legislation. 169. The Government of the United States of America made references to its detailed comments on Articles 6, 7, 10, and 11 at the first session (1995) of the Working Group, and reiterated its support for the basic thrust of those Articles. He stated that Article 6 raises a collective rights issue and that it might be rephrased to provide for the protection of individual rights to security and integrity exercised in community with others. The representative also expressed concern that the terms "ethnocide" and "cultural genocide" in Article 7 are not clear concepts that can be usefully applied in practice. He suggested that the provision could be rephrased to state that indigenous people have a right to be free not only from genocide but from actions aimed at destroying their rights to belong to the group and enjoy their own culture, language and religion. With regard to Article 11, it was said that indigenous peoples should have the same right as non- indigenous people to protection during time of conflict. He also noted that the declaration should not derogate from the Geneva Convention Rules. 170. The Government of Ecuador expressed its general support for Articles 6, 7, 10, and 11. As to Article 6, Ecuador suggested that the term "prosperity" should be included after the phrase "to live in freedom, peace and security." Moreover, it was said that the terms "distinct peoples" in Article 6 and "territories" in Articles 7, 10 and 11 should be clarified. With regard to Article 11, it was said that it should be into line with the Geneva Conventions. 171. The representative of the International Organization of Indigenous Resource Development, expressed his support for Articles 6, 7, 10, and 11 by reading the present text of those articles and suggesting that the present text should be kept unchanged. 172. The representative of the Grand Council of Crees stated his strong support for Article 10. He said that indigenous peoples and communities have been time and time again expelled from their lands or have had communities relocated without their consent, and said that it is required with protection under international law. 173. The representatives of the Chickasaw Nation, National Aboriginal and Islander Legal Service Secretariat, Aboriginal and Torres Strait Islander Social Justice Commissioner, Central Land Council, New South Wales Aboriginal Land Council, Asociacion Napguana, Chittagong Hill Tracts Peace Campaign, World Council of Indigenous Peoples, International Indian Treaty Council, Association Nouvelle de la Culture et des Arts Populaires, Finno-Ugric Consultation Committee, Cordillera Peoples Alliance, Indian Confederation of Indigenous and Tribal Peoples, World Council of Churches, Lummi Indian Business Council all stated their strong support for Articles 6, 7, 10, and 11 as currently drafted, and called for adoption without any changes, amendments or deletions. It was also emphasized that they consider Articles 6, 7, 10, and 11 as minimum standards. 174. The representative of the Indian Law Resource Center expressed her strong support for Articles 6, 7, 10, and 11. She said that the different articles represent distinct concepts. The representative referred to the concept of "integrity" in Articles 6 and 7, and identified it as a fundamental principle in this context. She said that the integrity of indigenous peoples and nations has been threatened throughout history. The representative said that the grouping of articles can be harmful, due to the possible deletion or diminishment of concepts or elements of concepts in the articles. Moreover, she said that articles should not be grouped in the future. 175. The representative of Movimiento Indio "Tupaj Katari" proposed that the following articles should reads as follows: Art. 6. "Indigenous peoples have the collective and individual right to live in freedom, peace and security as distinct peoples and to full guarantees against any form of genocide or any other act of violence. States should undertake to guarantee the physical and mental integrity of the individual, group and original community against any type of genocide, including acts of violence aimed at the forcible removal of indigenous children from their families with the deliberate intention of totally or partially destroying a historically constituted social or ethnic group." Art. 7. "Indigenous peoples have the collective and individual right to security and protection against any perpetration of ethnocide and genocide, acts condemned by international instruments as crimes against humanity. This protection, prevention and redress shall apply to: (a) Any unlawful act which has the aim of depriving indigenous nations of their own identity, infringing their integrity and denying the legitimate rights to enjoy, develop and transmit their cultural values to future generations; (b) Any practice of forcible assimilation, alienation and integration into other cultures and ways of life performed through pressure, intimidation and even the use of force, in contempt of indigenous cultures and philosophies; (c) Any arbitrary dispossession of their lands, territories and natural resources occupied and exploited by indigenous peoples since time immemorial; (d) Any forcible act of modern evangelization and penetration of sects into aboriginal territories with the intention of imposing on the original communities beliefs and religions alien to their own which, by their nature and their implications, are incompatible with indigenous vision; (e) Any racist propaganda, incitement to hatred, violence and intolerance which jeopardize the dignity and lives of indigenous peoples and nations." Art. 11. "Under the Additional Protocols to the Geneva Conventions, indigenous peoples have the right to appropriate protection and security in times of armed conflict. States shall respect the provisions of international humanitarian law, in particular the Fourth Geneva Convention of 1949, for the protection of civilian populations in time of war, and shall not: (a) Recruit indigenous individuals against their will into the armed forces with the aim of fighting other indigenous peoples; (b) Prohibit in all circumstances the recruitment into the armed forces of indigenous children and adolescents under the age of 18; (c) Force indigenous individuals to abandon their lands and territories or relocate indigenous populations in areas for military purposes, depriving them of their means of subsistence; (d) Force indigenous individuals to work against their will for military purposes under conditions which are discriminatory and detrimental to their health." As to Article 10, the representative of Movimiento Indio "Tupaj Katari said that due of its content and scope, this provision should be inserted in the part relating to lands, territories and natural resources. ARTICLES 19, 20, 22 AND 23 176. The representative of the International Organization of Indigenous Resource Development proposed language for articles 19, 20, 22 and 23 by reading out the text of the articles as adopted by the Sub-Commission. The representative of the Indigenous World Association called for the adoption of the articles in their present form considering that they were valid rights of indigenous peoples. 177. The representative of the Government of Mexico stated that the articles under consideration dealt with some basic aspects of the Working Group's work, namely the participation of indigenous people in decision-making processes that affect them. she stated that her Government supported the basic principles in the articles and that these were in line with efforts undertaken at the national level. With regard to the second paragraph of article 22 she stated that the use of language was important and suggested replacing the word "impedidos" in the Spanish version with "descapacitados". 178. The representative of the Government of Denmark and the Home Rule Government of Greenland expressed full support for the articles under consideration as they stood because they represented the basic elements for the enjoyment of political, civil, social, cultural and economic rights by indigenous peoples. He stated furthermore that democracy, development and respect for human rights and fundamental freedoms were interdependent and mutually reinforcing. 179. The representative of the World Council of Indigenous Peoples said that the element of free and informed consent as laid down in the second paragraph of article 20 was an integral part of the right to self-determination and crucial for the relationship between indigenous peoples and Governments on a basis of equality. He stated that this was not a new concept and that it went beyond the individual and was intrinsic to democracy. 180. The representative of the Government of Canada stated that she understood that articles 19 and 20 were intended to state the right of indigenous individuals to participate in the general political processes of the States in which they live without discrimination were consistent with other international instruments including the International Covenant on Civil and Political Rights. She stated however that reading article 19 as meaning that indigenous individuals have special rights in relation to matters that affect them in the same way that they affect non-indigenous individuals would not reflect the purpose of the article. She stated that perhaps articles 19 and 20 could be combined into one article reflecting the principle of the right to participate fully in public affairs, including participation in State decisions which directly affect certain areas of particular concern to indigenous people and referred to article 25 of the ICCPR and article 2 of the Declaration on the Rights of Minorities as sources of inspiration. She also stated that the right to an adequate standard of living as laid down in article 22, the principle contained in article 11(1) of the International Covenant on Economic, Social and Cultural Rights could be used as guidance. She stated furthermore that in many countries, it was the sole responsibility of the State to ensure that the rights of children were respected and suggested the insertion of an acknowledgment that indigenous communities may also play a role in ensuring that the rights of indigenous children were respected. With regard to article 23 she suggested that attention be given to article 1 of the Declaration on the Right to Development which described the content of the right to development and acknowledged that it may be exercised both individually and collectively. She said however that article 2 of this Declaration stated that the human person was central to the right to development and should be the active participant and beneficiary of the right. 181. The representative of the CIDSA expressed his support for the draft as adopted by the Sub-Commission and said that articles 19 and 20 were very important as a tool to avoid escalation of situations where indigenous peoples were subjected to decisions in which they had not participated. 182. The representative of the Lummi Indian Business Council called upon the Working Group not to change the articles under consideration in light of his concerns over the political and social situation of indigenous peoples. He said that indigenous peoples have the right to participation as collectivities and added that their participation in existing procedures was hampered by the overall economic situation. 183. The representative of Sweden stated that two elements should be reflected in articles 19 and 20. The first was that indigenous people had the same rights as others without discrimination as also reflected in the ICCPR, and the second that indigenous people should participate in decision-making processes whose outcome affect them. She called the Canadian proposal of combining articles 19 and 20 into one article interesting. She suggested the insertion of the phrase "where necessary" after the phrase "special measures" in the first paragraph of article 22. She also stated that the second paragraph of article 22 should be directed more to vulnerable individuals and did therefore not consider the listing exhaustive. She stated furthermore that her Government had no major problems with article 23 but suggested the deletion of the word "all" in the third sentence. 184. The representative of the Aboriginal and Torres Strait Islander Commission indicated that there was a clear link between article 19 and article 4. He stated that article 19 addressed two related but distinct rights, namely the right to participate in decision-making and the right to develop their own decision-making institutions. He said that the former was affirmed in article 21(1) of the Universal Declaration on Human Rights, article 25(a) of the ICCPR, articles 2(2) and 3(3) of the Declaration on the Rights of Minorities and article 6(1)(b) of ILO Convention 169 while the former was recognized in article 6(1)(c). He continued by stating that article 20 addressed the specific aspect of decision-making in the context of devising legislative or administrative measures. He said that a similar right was contained in article 6(1)(a) of ILO Convention 169. He opposed the deletion of the phrase "free and informed consent" with the argument that the historical and contemporary marginalisation and often small numbers in society of indigenous peoples meant that the normal operation of a democratic system of Government did not necessarily allow for adequate expression of indigenous perspectives. He stated that article 5 of the Convention on the Elimination of All Forms of Racial Discrimination and certain provision of ILO Convention 169 were affirmation of the article 22. He also referred to article 1 of the Declaration on the Right to Development, article 7(1) of ILO Convention 169 and article 22(1) of the African Charter on Human and Peoples' Rights as being related to article 23. 185. The representative of the Government of Japan stated that he shared the concerns expressed by Canada on articles 19 and 20. he said that article 22 was unclear in comparison with article 1 of the International Covenant on Economic, Social and Cultural Rights and wondered what was meant by the phrase "special measures". With regard to article 23 he stated that the wording was very wide considering that economic and social rights are generally realized by national policies and actions. 186. The representative of the New South Wales Aboriginal Land Council stated that articles 19 and 20 contained manifestations of the right of self-determination. He said that participation on the basis of consent, recognition of indigenous institutions, and the right to develop their own institutions were part of this. The representative of the International Organization of Indigenous Resource Development called for adoption of the articles as they stood and said that they reflected the right of self- determination. 187. The representative of the Government of Fiji stated that both her Government and the participants at the Suva- Workshop supported the articles as adopted by the Sub- Commission. She said that the draft was a declaratory instrument whose implementation was up to the Governments but hoped that these would provide the necessary resources and provisions necessary to promote positive discrimination. She added that the draft did not create special rights for indigenous peoples but merely provisions that ensured that indigenous peoples had equal rights. The representative of the Government of Bolivia stated that his Government supported adoption of the articles as they stood as soon as possible. 188. The representative of the Government of Malaysia fully supported the special measures enumerated in article 22. He also supported article 23 but with the qualification that it was exercised through the institutions and agencies established for this purpose. With regard to article 19 he stated that his delegation found the scope of the phrase "to maintain and develop indigenous decision-making institutions" unclear and sought clarification on this point. He stated that his Government could support article 20 subject to modification as in practical terms the right to participation in devising legal and administrative measures could not extend to participation in the legislative and executive bodies without observance of the necessary procedures. He supported the inclusion of the phrase "free and informed consent" but noted that this required the establishment of an appropriate mechanism for consultation. 189. The representative of the Government of France expressed his concern about articles 19, 20 and 23 which, in his opinion, created special rights and raised questions of sovereignty and over article 19 which gave indigenous peoples a right of veto. He also shared the concerns expressed by Canada and Japan. 190. The representative of the Government of Chile stated that his Government could support article 22. He also stated that articles 19, 22 and 23 shared certain conceptual points which were at present somewhat ambiguous. He said that, in order to enhance the exactness of the wording, safeguard the objectives of the articles and avoid the existence of diverging interpretations of the articles, their language had to be adjusted. 191. The representative of China expressed his support for the articles under consideration and stated that article 19 could be strengthened by inserting a phrase to the effect that States should take relevant measures to ensure that indigenous peoples participate. 192. The representative of the Central Land Council commented on a general trend she had detected among Governmental delegations that felt that recognition of collective rights was something new and dangerous. She said that collectives rights were already recognized in international law and referred in this respect to the right of self-determination, rights related to international peace and security, right of permanent sovereignty over natural resources, the right to development, rights related to the environment, the rights of minorities, and rights related to the existence of groups such as those protected by the Genocide Convention. She said that the draft had been elaborated because existing human rights law did not protect indigenous peoples and that therefore the argument put forward by Governments that guarantees in international law already existed were meaningless.. She considered the provisions of article 19 essential but said that States should make indigenous participation effective through administrative measures. She said that the second paragraph of article 20 was essential to stop continuing colonial domination. She said that special measures as laid down in article 22 were necessary to put right past and present wrongs. She also stated that article 23 would be good protection against changes of Governments and ideologies. She concluded by stating that these were minimum standards. 193. The representative of the Association Nouvelle de la Culture et des Arts Populaires referred to the name of the Working Group as an indication of the non-recognition of the rights of indigenous peoples. He also stated that international law prevailed over national law and that therefore he did not understand why Governments invoked the argument that their national laws were not in conformity with the provisions of the draft. He said that the provisions were minimum standards and called for their adoption. 194. The representative of the Government of Brazil stated that his Government had no difficulty with article 19 in its present form. He said he agreed with the principle goal of article 20 but believed that the language could be improved to emphasize this goal. He suggested the following language: "Indigenous people have the right to participate fully, if they so choose, in the discussion of legislative and administrative measures that may affect them." "States shall consult the peoples concerned, whose informed opinion shall be expressed freely, before adopting and implementing such measures." 195. The representative of Brazil also supported the spirit of article 22 and suggested the insertion of the phrase "inter-alia" before the phrase "in the areas", since this list of areas should not be limited. He said his Government also considered it important to include a reference to the educational area in this list, consistent with articles 15 and 16 of the draft. He said his delegation recognized the right contained in article 23 and suggested, with a view to provide the article with legally appropriate language, to replace the phrase "the right to determine" with the phrase "the right to active and informed participation" in the second sentence. 196. The representative of the Government of Colombia said that indigenous peoples should, on the basis of their collective features, participate as collectivities and that these features warranted the development of special and distinct ways of participation. She therefore supported the general thrust of articles 19, 20, 22, 23 and 24. With regard to article 22 she agreed with the representative of Mexico to replace "impedidos" with "descapacitados" in the Spanish version. She suggested the addition of the phrase "and according to their own cultural systems" at the end of article 23. She also suggested adding the phrase "States shall endeavour to ensure cultural diversification ...... " at the end of article 24. 197. The representative of the Government of Australia stated that the articles under consideration were closely related to the broader issue of self-determination. 198. The representative of the Government of Ecuador stated that the special measures referred to in article 22 were applicable to all citizens of a State. He supported the replacement of the phrase "impedidos" with the phrase "descapacitados" in the second paragraph of article 22. With regard to article 23, he said that programmes developed with regard to the right of development had to be carried out through the competent national authorities. 199. The representative of Norway supported the general thrust of the articles under consideration although he suggested the deletion of the phrase "if they so choose" since article 21 of the Universal Declaration on Human Rights and article 25 of the ICCPR did not confer an unconditional right of participation. With regard to article 19 he requested clarification of the phrase "in accordance with their own procedures". He said he supported the reference to special measures in article 22 but that these had to be limited to specific areas. He said his Government supported article 23 since it was similar to article 7(1) of ILO Convention 169. 200. The representative of the Chittagong Hill Tracts Peace Campaign stated that the denial of the rights under consideration would have serious practical effects for indigenous peoples and therefore called for their adoption as drafted. He said that consultation was not the same as consent. 201. The representative of the Government of the United States of America supported the goal of article 19 to the extent it attempts to ensure that indigenous people may participate effectively in decision-making at the national and local level, particularly with respect to decisions directly affecting them. He said that there was a need for a strong recognition of the importance of democratic processes in the declaration. He called for the revision of article 20 to bring it in line with international law but said he supported the basic principles. Furthermore, he said that special measures (article 22) may be appropriate when indigenous people are in a disadvantaged position in comparison with the rest of society but said that entitlement to such special measures was not a right under international law. He endorsed article 23 in so far as it was in line with the Vienna Declaration and Programme of Action but did not feel that it was appropriate to recognise collective development as a right. The United States of America does not accept in an international context the right to development of States or groups. 202. The representative of the International Organization of Indigenous Resource Development proposed language for articles 4, 8, 21 and 33 by reading out the text of the articles as adopted by the Sub-Commission. The representative of the Indigenous World Association called for the adoption of the articles in their present form considering that they were valid rights of indigenous peoples. 203. The representative of the International Indian Treaty Council stated that the draft should be adopted as it stood considering that it reflected the minimum standards of protection of the rights of indigenous peoples and said that as an integral part of the declaration the articles under consideration should not be changed. 204. The representative of the Indigenous Woman Aboriginal Corporation in a joint statement with two other Aboriginal organizations stated that the element of self-identification as contained in article 8 was widely recognized as being fundamental to the exercise of the right of self- determination and could therefore not support any revision of the existing text. She said that articles 19 and 20 were relevant with regard to article 4 which must be viewed in light of the universally accepted notion that human rights are universal, indivisible and equal. She said there was an obvious demonstrable link between respect for indigenous characteristics and respect for indigenous institutions and said that there was a clear link between article 21 and article 8. She stated that the provision "in accordance with internationally recognised human rights standards" in article 33 may be interpreted to mean that indigenous peoples do not possess rights to develop their own institutions unless they were in accordance with international human rights law. She said that, as a matter of principle, this was discriminatory in so far as other peoples were nor subjected to the same restriction. She reiterated that she considered indigenous peoples bound by international human rights law. 205. The representative of the Government of France stated that the articles under consideration were redundant, vague and mixed civil with collective rights. He said that his delegation wished to see the reference to human rights in article 33 retained. 206. The representative of the Central Land Council stated that the element of self-identification in article 8 was essential and recalled the conclusion of the Chairperson- Rapporteur of the Working Group on Indigenous Populations in her note on the concept of indigenous peoples that a definition of indigenous peoples was neither possible nor desirable. She urged strongly to retain the reference to indigenous legal systems in article 4 and to the word "customary" in article 33. She also said that article 21 should not be rejected simply out of fear of the possibility of claims for compensation. 207. The representative of the Government of Norway stated that his Government strongly supported the ideas behind the articles under consideration. He said that effective indigenous participation in decision-making at all levels was crucial. He said that the idea of participation was contained in article 21 of the Universal Declaration on Human Rights, article 25 of the ICCPR and article 6 of ILO Convention 169. He said that in some areas though he would like to see some clarifications and referred in this respect to the phrase "in accordance with their own procedures" in article 19, and the phrase "free and informed consent" contained in article 20 which had been identified by some speakers as giving indigenous peoples a right of veto. He said his delegation supported the concept of special measures in article 22 but felt that these should be reserved for overcoming effects of situations of disadvantage as was the case in article 1(4) of the Convention on the Elimination of Racial Discrimination. He also stated that he could support the concept reflected in article 23 which to a large extent was also reflected in article 7(1) of ILO Convention 169. He said that Norway supported the idea that distinct groups had the right to maintain their characteristics since this was already present in article 27 of the ICCPR, article 30 of the Convention on the Rights of the Child and in the Declaration on the Rights of Minorities. Finally, he referred to the Technical Review that suggested that there was overlap between articles 4 and articles 8, 21 and 33. 208. The representative of the Government of Sweden also referred to the Technical Review and the possible overlap between the articles under review. She said that the element of self-identification as reflected in article 4 was important and that there was a link between article 4 and articles 19 and 20. She said that articles 21 and 23 overlapped with other articles of the draft and suggested consideration thereof. She also stated that the reference to human rights in article 33 was very important. 209. The representative of the Government of China supported the articles under consideration. He said that in article 4 emphasis should be put on the phrase "of the State" and referred in this respect to articles 19 and 20. With regard to the element of self-identification contained in article 8 he stated that indigenous peoples are indigenous peoples whether they identified themselves or were identified and/or recognized by others. He compared the elaboration of the declaration with building a house without knowing who was going to live in it considering that the draft did not contain a definition. He therefore called for the insertion of a procedure for recognition. 210. The representative of Malaysia stated that his Government could accept the wording of articles 8 and 33 as drafted. With regard to article 4 he said that he could not accept the existence of a legal system parallel to that of the State. He also said that his delegation could, in principle, accept articles 21 and 33 and that his delegation did not have any proposals at this time. 211. The representative of the Government of Canada stated that he supported the principles contained in articles 4 and 8. He also referred to an overlap between the articles under consideration as suggested by the Technical Review. He said that self-identification and community acceptance were important elements and referred in this respect to article 9. He said that his Government supported the principle of self-government contained in article 21 but wondered how responsibilities could be shared with Governments. He also said that article 31 was linked to article 21 and could therefore be combined and placed in Part VII. With regard to the second sentence of article 21 he asked for clarification on how far back the right to compensation would apply considering that usually international law is not retroactively applicable. He also noted that there was no indication of the cause of deprivation for which compensation had to be provided. He said that article 33 could be combined with article 31 since they both dealt with self-government. 212. The representative of Colombia expressed support for the articles under consideration as a whole and emphasized the importance of the right of indigenous peoples to respect for their own juridical systems. 213. The representative of the Government of Mexico suggested inserting in article 4 the phrase "without detriment to the" after the phrase "if they so choose" and deleting the word "in". 214. The representative of the United States of America believed it important to emphasize that all indigenous people have the right to maintain and develop distinct ethnic, social and cultural, characteristics including a right to self-identification and viewed the refusal of this right by States a serious human rights violation. He said his Government also endorsed the concept that indigenous people should be able to participate in the political, economic, social and cultural life of the State. His Government felt, however, that certain aspects of these articles needed to be reformulated. He also said that his Government supported the goals embodied in article 21 but noted that certain of the provisions needed to be narrowed and clarified. 215. The representative of the Lummi Indian Business Council called upon the Working Group to adopt the articles under consideration as drafted considering that the rights therein were inherent. 216. The Aboriginal and Torres Strait Islander Social Justice Commissioner in a joint statement with two other Aboriginal organizations said that he had some difficulties in discerning a common theme when considering articles 4, 8, 21 and 33 which suggested the need for a consensual approach to the methods of work of the Working Group. He considered the articles to be absolute minimum standards and urged their adoption without amendment. With regard to indigenous legal systems and juridical customs as laid down in article 33 he referred to article 8 and 9(1) of ILO Convention 169. He said that recognition of indigenous laws and customs was not only an issue of indigenous heritage and pride but could also be an issue of survival considering that they were an inseparable part of their identity. He also said that this recognition was not equivalent to being sensitive to or making allowances in their legal process for the difference of the various ethnic groups now making up Australia. He noted that self-identification as laid down in article 8 was widely recognized in international human rights law and referred in particular to article 1(2) of ILO Convention 169 as well as the General recommendations and articles 8 and 9 as well as article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. He said that article 21 recognized the right of indigenous peoples to be secure in the enjoyment of their means of subsistence and to engage in traditional and other economic activities. He referred to related provisions of international human rights including article 25 of the Universal Declaration of Human Rights, article 11 of the ICESCR, article 12 of the Convention on the Rights of the Child and articles 2(1), 14(1) and 23 of ILO Convention 169. He said he did not understand the difficulties States had in contemplating compensation for gross and systematic violations of human rights considering that the international community clearly recognized the existence of such an obligation. He referred in this respect to the jurisprudence of the Human Rights Committee under the Optional Protocol, the jurisprudence of the Inter-American Court of Human Rights in the case of Aloeboetoe v. Suriname and the Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law prepared by Special Rapporteur Theo van Boven. 217. The representative of the Government of the Russian Federation stated that the language of article 4 was acceptable provided that the ways and means were clarified. She also stated that self-identification contained in article 8 was acceptable as a principle as long as the demands of national legislation were taken into account and it did form in impediment. She stated that article 21 should be considered jointly with article 31 and that the "systems" referred to should be discussed within their national and local setting. She said that article 33 was acceptable provided that the institutions referred to were compatible with those existing within the State structure. 218. The representative of the Government of Japan stated there had to be equality before the law in a State and this posed a problem with regard to accepting separate "legal systems" as referred to in article 4. He also considered the collective right contained in article 8 as problematic. With regard to article 21 he said that compensation was regulated under national law and called for qualifying article 31. 219. The representative of the Government of Australia stated that his Government had no serious problems with articles 4 and 33 but requested clarifications concerning the meaning of "political and legal systems". With regard to article 8 he also stated that this did not constitute any serious problem and reiterated the futility of finding an all embracing definition of indigenous peoples and said that applicability should be left to national determination. 220. The representative of Chile stated that the groups of articles under consideration highlighted the importance of preserving the customs and traditions of indigenous people. He felt however that article 4 needed more detail and clarification with regard to the scope of the political and juridical institutions contained in this article. He supported the current drafting of article 8 and the spirit of articles 21 and 33. He felt in general that the final draft should have greater clarity. 221. The representative of the Indian Confederation of Indigenous and Tribal Peoples said it was distressing that several Governments had stated that the provisions of the draft should be in conformity with international human rights law and domestic legislation. He said that the draft looked to the future and that international and domestics laws would have to work towards the same level. He urged the Working Group to adopt the draft as is stood, especially articles 4 and 8 since they were crucial for the survival of indigenous peoples. 222. The representative of the Grand Council of the Crees stated that the words "maintain and develop" were very important since they recognized that indigenous peoples' societies were not frozen in time but like any other society an evolving entity. He opposed combining articles 21 with article 31 since one dealt with development and subsistence while the other dealt with self-government. He said that the question on how far back compensation had to be paid was the same as asking how far back law applied. He also said that the argument that international law did not apply retro- active did not hold ground since compensation was by definition retroactive. 223. The representative of the Government of Ukraine said that the implementation of article 4 could lead to the existence of contradicting legal systems. She said that there was a possible overlap between article 4 and articles 8, 21 and 33. With regard to article 8 she said that criteria were necessary. ARTICLES 25 AND 26 224. The representative of the International Organization of Indigenous Resource Development proposed language for articles 25 and 26 reading out the text of the articles as adopted by the Sub-Commission. 225. The representative of the MAA Development Association called for the adoption of articles 25 and 26 as they stood considering that the ownership and control of lands, territories and resources were essential to the exercise of the right of self-determination and health of indigenous communities. He recommended that indigenous peoples, as a birth right take control of lands, sacred lands be excluded form licensing or sale, indigenous peoples be compensated for loss of their lands, indigenous peoples proceed in accordance with their own values, social structures and at their own pace in developing their lands and that States should enact legislation to ensure that there were no prospecting activities on indigenous lands without their consent. 226. The representative of the Grand Council of the Crees stated that article 25 was intended to preserve and strengthen the intimate relationship indigenous peoples have with their lands and territories which connected the use of lands and resources with a responsibility to care for and preserve those resources for future generations. He said that the phrase "which they have traditionally owned or otherwise occupied or used" was employed to avoid the technical objection put forward by some States, that indigenous peoples did not have proper title to their lands and therefore no land rights. He also said that article 26 elaborated upon and implemented article 25 in a way consistent with Agenda 21 of the United Nations Conference on Environment and Development. He said that clearly the matters dealt with in articles 25 and 26 required protection under international law. 227. The representative of the International Indian Treaty Council stated that land was indigenous peoples' sacred mother, life giver and the source of their survival and that therefore article 25, 26 and 3 were the heart and soul of the draft. She therefore called for the adoption of these article as drafted considering that they were an integral part of a draft declaration which reflected the minimum standards of protection of the rights of indigenous peoples. 228. The representative of Sweden recognized the intimate relationship indigenous peoples had with their lands and therefore supported the inclusion of such recognition in the declaration. She stated however that the declaration should reflect that there are many different forms of land rights in the world. She said that she would like to discuss further the meaning of the word "strengthen" as contained in both articles 25 and 26 and suggested replacing the phrase "own, develop and use" in the first sentence of article 26 with the phrase "own, develop or use". The representative of Australia agreed with the intent of articles 25 and 26 but said that a closer look was warranted in light of law and practice. 229. The representative of the Upper Sioux Community stated that the draft was aimed at expanding the applicability of human rights so as to include indigenous peoples and sought to redress the violation of the individual and collective rights of indigenous peoples. He also said that self- determination was an inherent right of all peoples. Therefore, he called for the adoption of articles 25 and 26 as they stood. 230. The representative of Canada stated that lands and resources were of fundamental importance to indigenous peoples and that the declaration must reflect this importance while at the same time take into account the many different land arrangements that exist universally. She said that the French text of articles 25, 26 and 28 did not correspond with the English text. She also said that the terminology of article 25 needed more discussion. She recognized that the term "lands" would refer to those areas which indigenous people may own or have exclusive use of and the rights to resources thereon, while the term "territories" would refer to those areas where indigenous people did not own and did not have exclusive use of but where they may conduct their traditional life-style in accordance with domestic law. She considered that article 26 was one of the more complex provisions. She felt that the recognition of laws, customs and traditional land tenure systems and institutions was related to self-government and should be considered in this context. 231. The representative of the Government of the United States of America stated that his Government supported the goal embodied in article 25 but said that its language was over broad and imprecise. He said his Government would endorse a provision encouraging States to protect the distinct spiritual relationship and material relationship which exists between many indigenous groups and their lands, territories, waters and other areas. He also expressed his support for the general goals set forth in article 26. He stated however that the approach of article 26 to cover all the many different situations involving indigenous land claims in every part of the world was overly broad. He said that, for example he could not agree with the blanket statement "traditionally owned or otherwise occupied or used" which authorized ownership of all lands. He said that his delegation did support including language calling upon States to consider the possibility of negotiated land settlements. 232. The representative of CAPAJ said that one should not place a rigid limitation on the special aspect of territories since the relationship indigenous peoples had with their territories and the environment transcended space and time. He said that indigenous peoples must be able to manage their resources since this would allow them to control their lives and future. He said that therefore restitution of territories was of crucial importance. 233. The representative of the Government of Japan stated that the phrase "distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources" as laid down in article 25 was unclear to his delegation and should be qualified. With regard to article 26 he pointed out that the use of land is prescribed by national legislation. 234. The representative of the Indigenous World Association called for the adoption of the articles in their present form considering that they were valid rights of indigenous peoples. The representative of the World Council of Indigenous Peoples said that lands and territories were the foundation of the survival of indigenous peoples and that this link was recognized by the ILO and the Organization of American States. He expressed his agreement with articles 25 and 26 since they laid down the non-validity of the concept of "terra nullius". 235. The representative of the Organisation for Survival of Illaikipiak Indigenous Maasai Group Initiatives urged the Working Group to adopt articles 25 and 26 as currently drafted since they were of vital importance to the draft declaration which in turn determined the future of indigenous peoples. 236. The representative of Finland stated that his Government could accept article 25 but that article 26 should be flexibly drafted to allow for national solutions for the ownership of lands. The representative of the Government of Norway noted with respect to all the articles that dealt with land rights in the draft, including articles 25 and 26, that land rights are one of the areas where it was essential to find flexible language which could accommodate the various land rights situations in the world. He said however that this flexibility must be accompanied by strong protective language 237. The representative of the Government of Fiji referred to paragraph 33(f) of the Copenhagen Declaration on Social Development which said that States should recognize indigenous peoples lands. He also referred to paragraph 75(g) of the same document which referred to the empowerment of indigenous peoples to take decisions in matters concerning them and considered this recommendation relevant to article 4. 238. The representative of the International Alliance of Indigenous and Tribal Peoples of the Tropical Forests stated that indigenous lands and knowledge were seen as commodities. Since for indigenous peoples their life was tied to their lands he called for the adoption of articles 26 to 30 as they were currently drafted. He called on States to decentralize so that indigenous peoples could contribute to solving problems of poverty and the environment. He felt peaceful existence through agreements with Governments was possible. 239. The representative of the Movimiento Indio Tupaj Katari said that the problems of indigenous peoples could not be solved without solving the problems of indigenous lands, territories and resources since these were crucial to their survival. He also said that it would be impossible to solve these land questions without fully understanding the problems related to the globalization of trade, the activities of transnational corporations which he considered to be in violation of the right of permanent sovereignty over natural resources. He said that articles 25 and 26 had to strengthened. 240. The representative of the Finno-Ugric Consultation Committee stated that lands and territories were vital to the survival of indigenous peoples and called for the early adoption of the articles under consideration as did the representative of the Association Nouvelle de la Culture et Des Arts Populaires. The representative of the International Organization of Indigenous Resource Development also called for the adoption of articles 25 and 26 considering that an adequate land base was essential to the survival of indigenous peoples and expropriation the most powerful tool of destruction. He suggested language for the articles by reading out the text as currently drafted. 241. The representative of the New South Wales Aboriginal Land Council in a joint statement with several other Aboriginal organizations said that the articles under consideration should be analysed within the context of the draft declaration as a whole. He said that the draft contained aspirations and should not be the lowest common denominator. In light of this he called for the adoption of the articles as drafted. 242. The representative of the Central Land Council stated that articles 25 and 26 were essential to the draft as a whole considering that the absence of indigenous control over their lands was the cause of the situation they were in. She supported the assertion that national law was not relevant in this respect. She said that the phrase "other resources" as found in both articles was very important considering that indigenous peoples' knowledge was under threat from multinational companies. She stated that indigenous peoples should be recognized as guardians of their lands. 243. The representative of the Government of Brazil stated that his Government had no difficulties with the principles contained in articles 25 and 26 but suggested using the present tense of the phrase "owned or otherwise used or occupied". 244. The representative of the Confederacion Sindical Unica de Trabajadores Campesinos de Bolivia stated that the affirmations contained in articles 25 and 26 were correct and should be retained as drafted. He said that indigenous peoples were alive thanks to the respect they had for their lands and the environment and that this was affirmed by article 15(1) of ILO Convention 169. The representative of the MAA Development Association stated that the issue of land rights was a delicate, complex and sensitive issue since it affected directly the livelihood of indigenous peoples. He said that indigenous peoples were uniquely qualified in the area of preservation and called for the adoption of the articles under consideration as they were currently drafted. 245. The representative of the Indigenous Law Resource Center stated that the grouping of articles was harmful since it lead to deletions and amendments. She said the draft consisted of 45 distinct articles that had to be analysed within the framework of the draft as a whole. She said that therefore a general dialogue on the fundamental issues was necessary. She also said that articles 19 on participation and article 20 on consent were in substance and procedure also applicable to the Working Group. She fully supported articles 23, 4 and 8 and said with regard to articles 25 and 26 that the relationship indigenous peoples had with their land was unique among the peoples of the world. 246. The representative of the Consejo de Todas las Tierras said that indigenous territories were the means through which indigenous peoples transferred their culture and that articles 25 and 26 recognized this. He also said that it would not be appropriate to consider these articles within a legal framework since they would then be considered a threat to States but rather within a framework of cultural diversity and universal reality. 247. The representative of the Ainu Association of Hokkaido stated that the distinctiveness of indigenous peoples does not have to be measured by any one else than indigenous peoples and said that articles 25 and 26 were a vital part of the draft and should be adopted as they were drafted. 248. The representative of the Aboriginal and Torres Strait Islander Commission stated that articles 25 and 26 recognized the unique relationship indigenous peoples had with their land and resources which were of critical importance for their survival and the exercise of the right of self-determination. He said that article 25 stated the obvious and confirmed existing human rights law and referred in this respect to article 17 of the Universal Declaration on Human Rights, article 5 (III) of the Convention on the Elimination of Racism, the General Comment of the Human Rights Committee on article 27 of the ICCPR and article 31 of ILO Convention 169. He concluded that article 26 elaborated and implemented article 25 and that both should be adopted as they stood. ARTICLES 27, 28 AND 30 249. The representative of the International Organization of Indigenous Resource Development proposed language for articles 27, 28 and 30 by reading out the text of the articles as adopted by the Sub-Commission. The representative of the Indigenous World Association called for the adoption of the articles in their present form since the were valid rights. 250. The representative of Ukraine expressed her reservations regarding articles 25 to 28 and 30 and said that land rights had to be placed in the context of national legislation to avoid confusion especially with regard to non-colonial situations. 251. The representative of the Government of France stated that his Government had serious difficulties with article 27 because of the legal and practical implications of the phrase "compensation shall take the form of lands, territories and resources equal in quality, size and legal status" He said that the lack of nuance in article 28 implied that indigenous peoples had a right of veto. 252. With regard to article 27, the representative of the Government of Sweden called for clarifications of the phrase "free and informed consent" and the possible retroactive application of compensation. In connection with article 28 she said that the role of indigenous peoples in environmental conservation had been recognized in Chapter 26 of Agenda 21. She requested however clarification with regard to the term "military activities". She continued by saying that the second paragraph of article 28 was very important but said that activities covered by the article could be undertaken when done procedurally and in special circumstances. With regard to the third paragraph she said that health issues were also covered by other articles and referred to article 19. 253. The representative of Colombia stated that the articles under consideration were linked to articles 25 and 26. She said that her Government agreed with their wording since they were in line with domestic law and practice. She said that the concept of "territories" was compatible with the notion of unified States which allowed for diversity. The representative of Japan said that the use of land was subject to national discretion. 254. The representative of the Grand Council of the Crees stated with regard to article 27 that a thief never rested comfortably and securely with his loot since the ownership and title of something that was obtained under questionable circumstances was tainted. He said that the function of article 27 was to reverse the process of dispossession by returning something to the original owners and where this was not possible compensate for its loss. He said that although article 28 appeared to deal with seemingly unrelated issues, the unity of theme was that all the elements of article 28 were part of the continuing destruction of the total environment, lands and territories of indigenous peoples. He said that article 28 attempted to prevent this abuse and reverse the damage done. He also stated that article 30 attempted to reverse the "development syndrome", whereby indigenous ownership rights to lands and resources are disregarded to allow for development, by recognizing the right of indigenous peoples to give or withhold consent. 255. The representative of the Lumad Mindanaw Peoples Federation called for the adoption of the articles under consideration as they stood. He said that the intent of the draft was to establish equality in the enjoyment of human rights and that the exercise of the collective right of self-determination was a pre-condition for the survival of indigenous peoples. The representative of the Lummi Indian Business Council also called for the adoption of the articles as the were. 256. The representative of the Organizacion de la Nacion Aymara stated that it was very important to know what the contents of the draft was so as to avoid confusion when analysing the articles. He said that its contents was a declaration of rights but rather aimed at the reparation and restitution of rights. He said speedy adoption was necessary since peoples were disappearing. 257. The representative of the Mejlis of Crimean Tatar People said that all the articles had a distinct meaning. He said he supported their adoption as currently drafted and called for the insertion of implementation mechanisms. The representative of the Association Nouvelle de la Culture et Des Arts Populaires pondered on the importance of the recognition of the concept of "identity" and called for the adoption of the articles as they stood. 258. The representative of the Government of Canada stated that his Government felt strongly that adequate processes for dealing with land claims and related resource issues should be available for indigenous groups. He said that States should provide arrangements for dealing with valid claims and consideration should be given to a reference to this effect in article 27. With respect to compensation he said that consideration might also be given to alternatives other than the ones mentioned in the article. With regard to article 28 he said that consideration might be given to separate the environmental from the military issues dealt with in article 28. He said that the article needed to reflect international as well as domestic standards on environmental matters and therefore the article might indicate that indigenous people have the right to the productive capacity of their lands. With regard to the second paragraph of the article he said that some groups may be willing to accept hazardous materials on their lands as a means, for example, of generating economic activity on the condition of full and informed consent. He said that the same was true for military exercises. 259. The representative of the Government of Brazil stated that his Government had no difficulties with the inclusion of article 27 in the declaration since it was consistent with national law and practice. He said that Brazil supported the goal of article 28 but pointed out that in his country the military had played a positive role in the protection of indigenous people and therefore called for revision of the second sentence of the first paragraph of the article. With regard to the third paragraph of this article he suggested that its wording reflect the idea that indigenous people should have active and informed participation in programmes for monitoring, maintaining and restoring their health. With regard to article 30 he believed that, although his Government supported the idea, it would be more appropriate, form a legal point of view, to affirm that indigenous people have the right to require that States take account of their free and informed opinion in the approval of any project affecting their lands and their resources. Finally, he stated that his Government was of the opinion that the concept of "spiritual impact" was included in "cultural impact" and could therefore be deleted. 260. The representative of the Government of the United States of America noted that article 27 overlapped with a number of other provisions, including article 7(b), 10 and 26 and some of these articles could therefore be consolidated in order to clarify and strengthen the text. With respect to these articles, the United States supported a clear recognition of the right of ownership and possession over lands or property which indigenous people occupy or possess, and of the necessity of adequate legal procedures to ensure that claims of confiscation or use were fairly resolved but doubted whether restitution was a viable means for resolving such issues in most States. With regard to article 28 he said that it could not be assumed that States were absolute environmental guarantors and felt it would be more appropriate to urge States to take measures to help indigenous communities preserve their environment. He said that article 30 could be improved by encouraging the design of governmental regulatory processes affecting large-scale projects whereby the people affected have substantial input into the decision-making process. 261. The representative of the International Indian Treaty Council stated that the articles under consideration should be adopted as they stood considering that they were an integral part of the draft she considered a minimum standard for the protection and promotion of the rights of indigenous peoples. She stated that negotiated settlement was a process whereby two equal parties freely entered into an agreement on the basis of their free and informed consent and that therefore a Government could not be negotiator and judge at the same time. Articles 36. 37. and 39 262. The Government of Sweden said that in order to move towards giving full effect to the provisions in the draft declaration greater clarity and a more distinct legal language are necessary in many of the articles. She also said that some legal concepts in the draft would have implications for governments beyond this draft declaration, if those concepts were not defined or restricted. 263. The Government of Canada stated that Article 36 which is dealing with the recognition and enforcement of treaties and agreements between States and indigenous people is an important provision of the draft declaration. Canada also emphasized that valid treaties and agreements should be honoured. However, it was said that their own treaties with the indigenous people of Canada were domestic rather than international agreements, and disputes over their interpretation or implementation should therefore be dealt with in domestic fora. The representative said that his government acknowledges that "original spirit and intent" is an issue in treaty interpretation, and that the interpretation must reflect the intent of both parties. However, it was said that Canada has reservations with regard to the reference to "spirit and intent" in Article 36 as the fundamental criterion for interpretation of treaties, and that it therefore should be made clear that "spirit and intent" is only one of a number of factors that need to be considered when dealing with such treaties. As to Article 37, Canada expressed the view that the provisions of the declaration should give guidance to States, and not impose mandatory measures. It should recognize the obligation on States to take effective measures as appropriate, to the maximum of their available resources, and in consultation with indigenous people. It was said that such flexible implementation would be consistent with the provisions included in Article 34 of ILO Convention No. 169 and Article 2 of ICESCR. With regard to Article 39, it was said that Canada supports the principle that domestic legal processes shall take into account the customs and traditions of indigenous people where appropriate, including both criminal and civil law and a broad range of dispute resolution methods. It was said that the question of indigenous "legal systems" is one which should be the subject of negotiations between States and indigenous people. 264. The Government of Finland expressed its full support for Articles 36, 37, and 39. As to Article 37, it was said that Finland is of the opinion that the rights recognized in the future declaration should be adopted and included in national legislation. 265. The Government of Colombia expressed its support for Articles 36, 37, and 39. As to Article 37, reference was made to Article 6 of ILO Convention No. 169. With regard to Article 39, the representative emphasized the importance of the second part of this article and proposed that the words "with priority" should be added between the words "take into consideration" and "the customs" in the last sentence. 266. The Government of Venezuela expressed reservations with regard to the words "to competent international bodies" in Article 36, and said that her government considers agreements between States and indigenous peoples as national agreements which should be settled in competent national bodies. 267. The Government of France expressed its reservation with regard to the wording of the second sentence in Article 37, in which it is stated that rights recognized in the provision "shall" be adopted and included in national legislation. It was said that the use of the word "shall" indicates that this is a convention and not a declaration. 268. The Government of Chile expressed its support for the general thrust of Articles 36, 37, and 39. However, it was said that the language in Article 39 should be reconsidered, and that it is necessary to have a more precise concept for the resolution of conflicts and disputes, which was said to be a domestic issue. 269. The Government of Brazil expressed its support for Article 36, and proposed that it should be stated in the article that indigenous people shall have access to legal mechanisms. As to Article 37, Brazil said that it does not have any difficulties in accepting the principles of this article. With regard to Article 39, it was said that the expression "mutually acceptable" can create misunderstanding and that it required some clarification. 270. The Government of the United States of America referred to its statements during the first session (1995) of the Working Group, which fully reflects the position of United States of America. As to Article 36, United States of America stated its support for the principle of having States honour their treaties and agreements with indigenous people. The representative said that in United States of America treaty rights are legally enforceable obligations. However, it was said that treaty rights are not enforceable in international tribunals, due to the fact that they do not give rise to rights under international law. With regard to Article 37, United States of America expressed its support for the spirit of the article, and said that it could be adopted with certain changes. It was said that any rights recognized in the declaration should be recognized in domestic legislation, in particular where they are not already provided for under national law. As to Article 39, United States of America stated its support for a text encouraging the use of such procedures which are mutually acceptable to the parties. It was said that indigenous people have the common right to equal access to independent and impartial mechanisms of dispute settlement including tribunals, as specified in Article 8 of the Universal Declaration on Human Rights. 271. The representative of the International Organization of Indigenous Resource Development expressed his support for Articles 36, 37, and 39 and read out the present text of those articles. He suggested that the present text should remain unchanged. 272. The representative of the Grand Council of the Crees emphasized the importance of Article 36, in which it is stated that indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States. He stated that States should respect and implement the treaties they enter into with indigenous peoples. It was said that the importance of article 36 is that it requires States to respect their legal obligations, and it provides for a means to settle treaty disputes at the international level. The representative said that this is important because at present States acts as the judge of its own acts. Moreover, the sheer number of broken treaty provisions suggests that the State is a very lenient judge of its own acts. It was also said that the very existence of dispute resolutions mechanisms at a higher level would help to obtain respect for these instruments. 273. The representative of the Aboriginal and Torres Strait Islander Commission presented a joint statement, on behalf of indigenous organizations and indigenous representatives of Australia, in which the representative expressed their strong support for Articles 36, 37, and 39 and urged their adoption as currently drafted. With regard to Article 36, the representative emphasized the importance of treaties, and called upon the Australian Government to immediately commence good faith negotiations to establish processes for an agreement of reconciliation. As to the second sentence in Article 37, it was stated that the language is identical to the language of Article 7 of the 1981 UN Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Belief. With regard to Article 39, it was referred to some international human rights instruments which establish individual complaints procedures, such as the First Optional Protocol to the ICCPR, Convention on the Elimination of All Forms of Racial Discrimination, and Convention Against Torture. Moreover, it was said that the complaints procedure pursuant to the Racial Discrimination Convention contemplates the submission of complaints not only by individuals, but also by groups concerning violations of their rights under the Convention. 274. The representative of the International Indian Treaty Council expressed her strong support for Articles 36, 37, and 39, and called for the adoption of the draft declaration in its entirety, as minimum standards, without any changes, amendments or deletions whatsoever. As to Article 36, she said emphasized the importance of the recognition, observance and enforcement of nation-to-nation treaties as well as other types of agreements and constructive arrangements which indigenous peoples have freely entered into with States. 275. The representatives of the Indigenous World Association, Comision Juridica de los Pueblos de Integracion Tahuantinsuyana both expressed their strong support for Articles 36, 37, and 38, and called for their adoption without any changes, amendments or deletions, as minimum standards. ARTICLES 35, 38, 40, AND 41 276. The Government of France said that the wording of Article 35 is very broad, it was also said that it should spell out the concepts more clearly. 277. The Government of Colombia proposed the following amendment in part one of Article 35: "Indigenous peoples that live in territories divided by two or more states, or that share the said territories, have the right to maintain their cultural unity, maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes between its members or social groups, and with other peoples across borders. 278. The Government of Chile expressed its general support for Article 35. As to Article 38, Chile expressed the need for more clarity, in particular with regard to the objectives of the "assistance" mentioned in the article. This is closely connected to the concept of self- determination. With regard to Article 40 and 41, Chile expressed its support for the general spirit of these articles but considered that article 40 needed clarification to define how intergovernmental organizations can contribute. As for as article 41 was concerned, the representative stressed the importance of establishing a permanent forum in the United Nations. 279. The Government of Venezuela stated that, in article 35, the terms "contacts" "relations and cooperation" needed clarification since they could be interpreted as referring to international relations which is a domain reserved for the State. The representative said she had reservations about article 38, in particular the right to financial and technical assistance from States which might imply that indigenous people could obtain international cooperation without going through the competent State organs. 280. The Government of Australia expressed its general support for Article 35, but said it would wish to clarify the possible suggestion from the draft that there might be an obligation on the part of States to provide the practical means to "ensure" the exercise of the right, for example by providing transport to facilitate the contacts referred to. As to Article 40, Australia said that a formulation similar to that in Article 9 of the Declaration of Minorities might better achieve the purpose of ensuring the effective involvement of organs and agencies of the United Nations system, in the implementation of the draft declaration. With regard to Article 41, Australia said it would reserve its position. 281. The Government of the United States of America expressed its support for Article 35, and that trans- boundary contacts should be encouraged. As to Article 38 United States of America expressed reservations, however, it was said that United States of America could accept a text providing that resource transfers are encouraged by the State and that States may as a matter of discretion agree to the provisions of such assistance. With regard to Article 40, it was said that implementation of the declaration should be largely the responsibility of States, although, United Nations bodies may be called upon to help. As to Article 41, United States of America said that they are of the opinion that the text should be brought into line with Article 9 of the Declaration on Minorities which provides that "specialized agencies and other organizations of the United Nations system shall contribute to the full realization of the rights and principles set forth in the present Declaration, within their respective fields." 282. The Government of Brazil expressed its support for Article 35, and said that it agrees that indigenous people have the right to maintain and develop contacts, relations and cooperation with others across borders. Brazil proposed the following wording of Article 35: "Indigenous people divided by international borders have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their fellows across borders, in accordance with national border regulations." As to Article 38, Brazil proposed to add "in accordance with national legislation" after the words "technical assistance." Brazil expressed its full support for Article 40. As to Article 41, Brazil said that it reserves its position concerning the creation of a permanent body on indigenous issues. 283. The Government of Japan stated its support for the view expressed by Brazil with regard to Articles 35 and 41. As to Article 38, Japan said that further clarification is required. 284. The representative of the International Organization of Indigenous Resource Development expressed his support for Articles 35, 38, 40 and 41 and read out the present text of those articles. He suggested that the present text should remain unchanged. 285. The representatives of the Ainu Association of Hokkaido referred to an earlier statement given by the Government of Japan concerning Article 38. He said that the concern of his government that special provisions for the Ainu people would jeopardize the principle of equality under the law in relation to the rest of the population was not tenable. The representative said that similar special measures are already practiced in Japan in order to ensure that other disadvantaged groups can enjoy to the fullest extent their fundamental human rights and freedoms. 286. The Saami Council expressed its support for Articles 35 and 38, and said that no conceptual changes should be made in the current text. 287. The representatives of Consejo de Todas Las Tierras, Aboriginal and Torres Strait Islander Commission, Association Nouvelle de la Culture et des Arts Populaires, Indigenous World Associations, Organisation for Survival of Illaikipiak Indigenous Maasai Group Initiative, Lummi Indian Business Council, all called for an adoption of Articles 35, 38, 40 and 41 in their present form, without any changes, amendments or deletions. ARTICLES 3, 31 AND 34 288. The representative of the International Organization of Indigenous Resource Development suggested specific wording for articles 3, 31 and 34 by reading out the text of the articles in the draft. He re-emphasized his support for the repeated calls to adopt the draft declaration as adopted by the Working Group on Indigenous Populations and the Sub- Commission and that it be referred to the Commission on Human Rights, Economic and Social Council and the General Assembly for approval and passage. He noted that all the articles, especially those on self-determination, treaties, Indian government, consent, lands and resources, economic, social and cultural development, education, medicine, spiritual recognition, language and culture are very important to them as recaptured rights and minimum international standards and he requested the recognition of these and all 45 articles in a spirit of cooperation and partnership. 289. The representative of the Government of Colombia agreed with the formulation of articles 3 and 31 and supported the present wording, as these articles duly clarify the concept of self-determination being applied in Colombia with respect to internal autonomy of indigenous peoples, self-government and self-determination. She stated that this is included in national legislation and article 6 of the Colombian constitution. She noted that self-determination is the cornerstone of the draft declaration and that it does not clash with State sovereignty. 290. The representative of the Saami Council stated that she regarded articles 3, 31 and 34 as dealing with the principle of the right to self-determination as a major principle and concern of the draft declaration along with the principle of the rights over land and related resources. She referred to the statement by the representative of the Government of Finland during the general debate, in which he referred to Recommendation No. XXI (48) of the Committee on the Elimination of Racial Discrimination, which emphasized the distinction between internal and external aspects of self- determination. She concurred with this statement because it reflects the opinion of how self-determination should be understood in current international law. 291. The representative of the Government of the Philippines stated that her Government did not have much problem with articles 3 and 31 but that it did have reservations about the notion of collective rights of indigenous communities in article 34 and in other articles which use that term. She stated that her Government believes that self-determination provides an important basis for the realization of the civil, political, economic, social and cultural rights of indigenous people and that it can only be exercised within a defined area (ancestral domains) and that it must respect a State's territorial integrity. She referred to provisions in the Philippine's Constitution that recognize and protect the rights of indigenous cultural communities to their ancestral lands. She also stated that they agree with the major thrust of the draft declaration but that it needs some improvement. It could be shortened to add to its impact and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities could serve as a model. 292. The representative of the Comision Juridica pare el Autodesarrollo de los Pueblos Originarios Andinos stated that every people has an inherent right to select its own destiny and that the right to self-determination is vital for the enjoyment of other rights of indigenous peoples. 293. The representative of the International Indian Treaty Council recommended and called for the adoption of the draft as adopted by the Sub-Commission in its entirety and without changes, amendments or deletions as a minimum standards protecting and promoting the rights of indigenous peoples. She wanted to go on record as opposing any changes whatsoever in the text or wording of articles 35, 38, 40 and 41 as well as articles 3 and 31 as they are integral and essential parts of the entire document as it now stands. She also stressed the importance of article 35 and the vital importance to the entire meaning, significance and validity of this document of article 3 in the current text. 294. The representative of the Government of Bolivia stated that this group of articles essentially refers to the right of self-determination and that it is particularly important to emphasize the conceptual scope and practical effects. He stated that the right to self-determination does not necessarily presuppose the system of government and in Bolivia's experience does not effect sovereignty. He referred to the background of this article, specifically article 8 of ILO Convention No. 169. He reaffirmed support for the wording of article 3. 295. The representative of the Government of Venezuela shared the thrust and intent of articles 3 and 31 but he noted that there is an element of repetition in articles 3 and 31 and suggested that they be merged into one article which would state, "Indigenous peoples have a right to self- determination. By virtue of that right they have the right to autonomy, or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions". This would achieve brevity and clarify the right of self- determination. 296. The representative of Indigenous World Association supported the language contained in articles 3, 31 and 34 and insisted on their adoption. He stated that article 3 forms the cornerstone of the declaration, that it must not be diluted or altered from its present form and that indigenous peoples have the collective right to exercise autonomy and self-government over all political and socio- economic matters regarding the well-being of their people within their external boundaries. 297. The representative of the Government of Chile stated that these articles present the greatest difficulties in the declaration and that it is important to reach consensus on the concepts therein. He stated that the meaning and interpretation of the right of self-determination needed clarifying, that he understood it to refer to internal self- determination, in conformity with ILO Convention No. 169, particularly article 7. 298. The representative of the Association of Shor People supported the declaration without the introduction of any changes, amendments or dilutions. He stated that article 3 is crucial to his people. 299. The representative of the Movimiento Indio "Tupaj Katari" stated that the implicit recognition of the right to self-determination constitutes the legal basis on which all provisions of the draft declaration are based and that it is an inherent right. 300. The representative of the Mejlis Crimean Tatar People stated that the right of self-determination of indigenous peoples is based on article 3 as well as articles 8, 9, 19, 20, 21, 33, 36, 37, 39, 40. and 41, which all represent different aspects of the right to self-determination. He emphasized his support for these articles and stated that he supported the integrity of the Ukraine State and that secession would be dangerous to all peoples. 301. The representative of the Commission for the Defence of Human Rights for Central America stated that articles 3 and 31 are essential to all indigenous peoples of the world as they are the basis of the whole draft declaration and that it is only when they are recognized that the just and democratic development for indigenous peoples can be achieved. He requested the adoption of the overall document without any amendments and called for the document to meet the aspirations of indigenous peoples as they are interested parties. 302. The representative of the Government of the United States of America stated that article 3 presents the most difficult question arising out of the declaration. He stated that they practice self-determination domestically but that they have difficulties with its use internationally in this context, as under contemporary international law, the term self-determination is open to varying interpretations, depending on the specific context. He stressed that the reference to the term of self-determination in an international context goes beyond existing law, that its meaning is not clear and that there is no international consensus on its meaning. On article 31, he stated that self-government of indigenous communities is fundamental but that the text as drafted goes too far. On article 34, he stated that indigenous people living in defined communities should have the ability to adopt legislation defining the responsibility of the individual to the community, provided that it is consistent with internationally recognized human rights standards. 303. The representative of the New South Wales Aboriginal Land Council presented a joint statement, on behalf of some of the indigenous organizations of Australia. He stated that indigenous peoples, like all other peoples, possess the right to self-determination and that to assert otherwise would be untenable, discriminatory and racist. He stressed that article 3 is one of the cornerstones of the declaration and that it must be retained unaltered or the declaration would be worse than meaningless. He also stated that article 31 appears to be a compromise as it only refers to some of the options open to people under international law but that they reluctantly accept it as part of the whole package of the text as presently drafted. 304. The representative of the World Council of Indigenous Peoples stated that the right of self-determination is the framework in which all other human rights can be secured and that governments must adopt this principle as it stands. He pointed out that article 3 does not encourage secession but that in connection with article 45 of the draft declaration, it specifically discourages secession. Nonetheless, he stated that this right is unconditional and that it should not be limited, amended or exclusive of any other right. 305. The representative of the International Organization for Indigenous Resource Development requested the adoption of articles 3, 31 and 34 without amendment. He pointed out that self-determination may be exercised in a manner consistent with the Declaration on Friendly Relations and that they do not agree in practice that the inevitable consequence of that right is the break up of the current structure of nation States. He stated that self- determination is the unifying doctrine of the declaration and that any significant reduction in this right would defeat the declaration's purpose. He also urged the Working Group to engage in a general debate about the fundamental concepts of the declaration, such as self-determination and collective rights, before commencing an article by article redrafting. 306. The representative of the Government of France stated that article 3 poses the question of whether the right to self-determination is exercised within a nation or by secession. He stated that the present wording of the text may lead to misunderstandings, it is discriminatory and against the equality of all before the law, and that some forms of self-determination seem to create a State within a State which is contrary to the French constitution. He shared the concerns expressed by the Government of the United States of America on Article 34 and stated that it seems to deprive citizens of rights before the law. 307. The representative of the Government of Fiji unequivocally supported article 3, and stated that it is pivotal to the entire declaration. He also stated that it should be read alongside article 45. 308. The representative of the Central Land Council stated that article 3 is fundamental to the success of the draft declaration as a whole, that any diminution would result in a rejection of the declaration as a whole by her people and that it is a pre-condition for the exercise of all rights in the declaration. She referred to common article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and stated that a failure to recognize this right for indigenous peoples would violate the fundamental principles of equality and non-discrimination articulated in the United Nations Charter and elsewhere. She also stated that article 3 must not be altered. 309. The representative of the Government of Canada stated that the question of self-determination is central to the declaration, that the right of self-determination is fundamental to the international community and that its inclusion in the UN Charter and in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights shows that it is important to the protection of human rights of all peoples. He stated that Canada is legally and morally committed to the observance and protection of this right. He recognized that this right applies equally to all collectivities, indigenous and non-indigenous, which qualify as peoples under international law. He referred to a survey of State practice and academic literature as well as the Declaration on Friendly Relations and stated that the principle is aimed towards establishing a framework for the full enjoyment of all human rights while respecting the political and constitutional framework of States. The goal of the Working Group is to achieve a common understanding of this right and reflect it in the wording of article 3. He stated that Canada accepts a right of self-determination for indigenous peoples which respects the political, constitutional and territorial integrity of democratic States and that it supported provisions in the draft declaration on the implementation of this right. With respect to article 31, he stated that Canada interprets a right of self-determination in internal and local affairs as a right of indigenous peoples to govern themselves and accepts the proposed range of matters over which self- government should extend. He pointed out that Canada is prepared to recognize a role for the State, together with indigenous peoples, in financing the implementation of self- government. He also called for further discussion to clarify the meaning of the terms "self-government" and "autonomy". He also noted the need to clarify the primacy of international human rights standards in relation to a number of provisions in the draft declaration, including article 34. 310. The representative of the International Working Group for Indigenous Affairs stated that human rights would have no meaning if the right to self-determination was diluted and that discussing internal and external aspects so as to reduce or strengthen the article is premature and counter- productive. He also stated that these articles should be retained in their existing form. 311. The representative of the Government of Brazil stated that he shared many of the concerns of the Governments of the United States of America and France. He stated that the constitution of Brazil guarantees self-determination but that they have problems with the reference to the right to self-determination in the context of the draft declaration and that they could not agree to the present drafting of article 3. He expressed the same concerns for article 31 and that they would have to modify and amend the present language regarding autonomy and self-government and that it should not include a list because this would depend on the organization of the State. On article 34, he stated that they recognize the existence of collective rights but that they shared the concerns expressed by the Governments of France and Canada and proposed to introduce a safeguard to protect individual rights. 312. The representative of the Grand Council of the Crees pointed out that the United Nations had already recognized that self-determination is a right belonging to "all peoples" and thus, it is also a right which belongs to the world's indigenous peoples. He emphasized that under the principles of universality and indivisibility the right to self-determination should not be limited but he also noted that a balance must be struck between respect for the right of self-determination and the need to protect the integrity and stability of States, as enunciated in the Declaration on Friendly Relations. He also welcomed the statement made by the Government of Canada. 313. The representative of the Government of Denmark expressed her support for the wording of articles 3, 31 and 34 in their present draft. She also urged the Centre for Human Rights to finish the work of producing the Manual of Indigenous Self-Government and to ensure its distribution to interested governments and indigenous peoples as she considered this would assist with the wider understanding of the issue. 314. The representative of the International Organization of Indian Resource Development acknowledged Canada's intervention and thanked it for its significant advancement, particularly in its acceptance of the right of self- determination of indigenous peoples and its use of the term "indigenous peoples". 315. The representative of the Government of Japan questioned whether they accepted the right to self- determination and joined in the concerns of the Governments of Canada, France and Brazil on article 34. 316. The representative of the Chittagong Hill Tracts Peace Campaign stated that the right of self-determination is the heart of the draft declaration and that article 3 is consistent with common article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. She urged the adoption of article 3 without any change, deletion or amendment. 317. The representative of the Government of Argentina stated that the present wording of the right to self- determination in article 3 was not acceptable. He referred to the Declaration on the Granting of Independence of Colonial Countries and Peoples and stated that he did not support self-determination in the external sense and proposed adding a sentence to the effect that the declaration cannot be interpreted as breaking up the unity of the State. He also stated that he supported the principle and philosophy of article 34 but that he agreed with the statements of the Governments of the United States of America and Brazil. 318. The representative of the Indian Law Resource Center informed the Working Group that she was utterly and totally flabbergasted as summed up in the following term: "WOW!". She acknowledged the positive contributions by the Government of Canada and other Governments but stated her concern that other States do not have a tentative agreement on fundamental concepts of the draft declaration such as the right to self-determination and the need to balance individual and collective rights. 319. The Aboriginal and Torres Strait Islander Social Justice Commissioner emphasized his earlier statement that the unqualified recognition of the right to self- determination is absolutely fundamental to the integrity of the declaration. He stated that the right to self- determination is the pillar upon which all other provisions of the draft declaration rest and that the language of article 3 must remain unaltered. He stressed that common article 1 of the International Covenant of Civil and Political Rights and the International Covenant of Economic, Social and Cultural Rights is a right of all peoples and that to deny this right to indigenous peoples would be discriminatory and would demonstrate that the Member States of the United Nations view our rights as inferior to those of other peoples. He acknowledged the statement by the Government of Canada. He proposed that there be a joint preparatory meeting to further discuss the methods of work of this Inter-Sessional Working Group and to plan the organization of work of the next session. 320. The representative of the Government of Colombia referred to the relationship between article 34 and provisions of their Constitution and the interpretation of these by their constitutional court. 321. The representative of the Cordillera Peoples Alliance stated that articles 3, 31, 34, is the starting point of the declaration. She referred to the preamble of the United Nations Charter and article 1 of the International Covenant of Civil and Political Rights and stated that the realization of lofty goals of the International Decade of the World's Indigenous People can only be attained if these articles are adopted without any diminution. 322. Two representatives of the International Indian Treaty Council each stated that self-determination is a right under international law and called for the speedy adoption of the draft declaration. 323. The representatives of the Association Nouvelle de la Culture et les Arts Populaires, the Ainu Association of Hokkaido and the Movimiento Indio Tupaj Katari expressed in written statements their support for these articles. ITEM 5 - OTHER MATTERS 324. The Government of Bangladesh drew attention to the question concerning the participation of international inter-governmental organizations and agencies in the substantive work of the Working Group. The representative referred to an intervention made by the International Labour Office during the first week of the session, and said that the statement went beyond the competence of the ILO Secretariat. The representative informed the Working Group that the response provided by the ILO Secretariat, on the request of Bangladesh, has not put their concerns to rest. Moreover, he said that the Secretariat is not the repository of the substance of the ILO Conventions, and has no authority to define or interpret issues of any of the Conventions, which is the prerogative of the parties to the Convention. However, The representative of Bangladesh said that it would not go into the comments provided by the ILO on the draft declaration. 325. The representative of Indian Law Resource Center referred to the statement made by the Government of Bangladesh. She said that the representative of Bangladesh addressed all matters but other matters, and that this shows that it is required with more space for general debate. 326. The representative of the International Organization of Indigenous Resource Development referred to unfortunate events in the course of this session, and expressed hope that those events do not have any impact on the establishment of a permanent forum for indigenous peoples within the United Nations. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :: -= THE FOURTH WORLD DOCUMENTATION PROJECT =- :: :: A service provided by :: :: The Center For World Indigenous Studies :: :: www.cwis.org :: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Originating at the Center for World Indigenous Studies, Olympia, Washington USA www.cwis.org © 1999 Center for World Indigenous Studies (All Rights Reserved. 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