Each year at this time CFSC goes to the UN Permanent Forum on Indigenous Issues in New York. Together with our partners we issued a joint statement this afternoon on the outcome of the World Conference on Indigenous Peoples.
Permanent Forum on Indigenous Issues
New York, 20 April – 1 May 2015
Item 3(a) of the agenda
Outcome of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples
Joint Statement of the Grand Council of the Crees (Eeyou Istchee); Amnesty International; Assembly of First Nations; Canadian Friends Service Committee (Quakers); Chiefs of Ontario; Femmes Autochtones du Québec/ Québec Native Women; First Nations Summit; First Peoples Human Rights Coalition; KAIROS: Canadian Ecumenical Justice Initiatives; Na Koa Ikaika KaLahui Hawaii; Native Women’s Association of Canada; Samson Cree Nation; Union of British Columbia Indian Chiefs
From the outset, it is important to underline a few key points. First, the Outcome Document is a consensus instrument. At the time of its adoption in the General Assembly, no State called for a vote. The subsequent explanations of position tabled by Canada and later by the United States do not constitute objections. An explanation of vote or statement of position has no legal effect on consensus.
Second, the Outcome Document is not merely an “aspirational” instrument. It reaffirms the obligation of all Member States to uphold the purposes and principles of the Charter of the United Nations. It reaffirms States’ support for the UN Declaration on the Rights of Indigenous Peoples, which is a vital human rights instrument that has diverse legal effects. Former Special Rapporteur James Anaya emphasized that “implementation of the Declaration should be regarded as political, moral and, yes, legal imperative without qualification.” The International Law Association concluded in 2010 that the UN Declaration is “a declaration deserving of utmost respect”.
Third, specific paragraphs in the Outcome Document cannot be considered in isolation. They must be interpreted in the context of the complete text and other international law. For example, there is no specific reference in the Outcome Document to Indigenous peoples’ right of self-determination, or to Indigenous peoples’ Treaties, or to the doctrine of discovery. However, such key issues are still included in the UN Declaration. In para. 4 of the Outcome Document, States have generally reaffirmed their “solemn commitment to respect, promote and advance and in no way diminish the rights of indigenous peoples and to uphold the principles of the Declaration”.
Commitments already violated
In the context of traditional knowledge, conservation and biodiversity, para. 22 of the Outcome Document uses the term “Indigenous peoples and local communities” without qualification. Yet in October 2014, less than a month after the WCIP, States undermined both the Outcome Document and the UN Declaration at a Convention on Biological Diversity meeting in Korea. The Conference of the Parties (COP) decided to use the term “Indigenous peoples and local communities” (instead of “Indigenous and local communities”) solely with the proviso that this change would have no legal effect whatsoever within the CBD now or in the future. Such action contradicts use of the term Indigenous “peoples” in the UN Declaration and other international law.
At the CBD meeting, Canada played a key role in opposing use of the term “peoples” – even though this term is enshrined in Canada’s Constitution and diverse federal legislation. States have no authority to restrict the status of Indigenous peoples, in order to impair in any way Indigenous peoples’ right to self-determination or other human rights. Such actions constitute racial discrimination.
Para. 28 of the Outcome Document calls on the Human Rights Council “taking into account the views of indigenous peoples, to review the mandates of its existing mechanisms, in particular the Expert Mechanism on the Rights of Indigenous Peoples”. Thus, it would be important to focus on all existing mechanisms and not solely EMPRIP, so as to ensure more effective promotion of respect for the UN Declaration.
The purpose in para. 28 is to “modify and improve” EMRIP. It is not to replace this body with a new entity with such wide-ranging powers that it could duplicate the work of UN treaty bodies and mechanisms. Para. 28 does not specify any limitation such as “within existing resources”. Clearly, modification and improvement of EMRIP will require additional human and financial resources.
Para. 31 of the Outcome Document requests “the Secretary-General, in consultation and cooperation with indigenous peoples, the Inter-Agency Support Group on Indigenous Peoples’ Issues and Member States, to begin the development, within existing resources, of a system-wide action plan to ensure a coherent approach to achieving the ends of the Declaration“.
The system-wide action plan needs to address “rights ritualism”: “Rights ritualism can be understood as a way of embracing the language of human rights precisely to deflect real human rights scrutiny and to avoid accountability for human rights abuses.” A stark example is Canada joining the consensus around the Outcome Document, but then subsequently violating its provisions at the CBD.
UN treaty bodies, specialized agencies and mechanisms need to increase their reliance on, and interpretation of, the Declaration so as to promote, respect, protect and fulfil Indigenous peoples’ human rights and fulfil related State obligations.
In particular, the UN Human Rights Committee has not made specific reference to the UN Declaration in carrying out its mandate as a treaty body. It appears that the Committee may consider the Declaration in its deliberations, but claims that the Committee cannot specifically mention any instrument other than the International Covenant on Civil and Political Rights. This situation requires further examination. No other UN treaty body assumes such a narrow interpretation of its mandate.
In Para. 33, States have committed to considering “ways to enable the participation of indigenous peoples’ representatives and institutions in meetings of relevant United Nations bodies on issues affecting them”. This would include “any specific proposals made by the Secretary-General in response to the request made in paragraph 40”.
Para. 40 emphasizes “ways to enhance a coherent, system-wide approach to achieving the ends of the Declaration”. It also underlines the need for “specific proposals to enable the participation of indigenous peoples’ representatives and institutions, building on the report of the Secretary-General” in July 2012.
Clearly, these are interrelated. Without full and effective democratic participation of Indigenous peoples’ representatives and institutions in meetings of relevant United Nations bodies on issues affecting them, a coherent system-wide approach to achieving the ends of the UN Declaration will not be achieved. Cooperation with Indigenous peoples is repeatedly stressed in the Outcome Document. Article 41 of the Declaration requires that ways and means of ensuring participation of indigenous peoples on issues affecting them be established.
As former Special Rapporteur Anaya stressed: “involvement of indigenous peoples in decision-making in the international arena … remains an important component of indigenous peoples’ right to self-determination”. Anaya added: “Financial and administrative support should be maintained and expanded as necessary to ensure that indigenous peoples can participate effectively in international forums.”
As concluded by the Expert Mechanism on the Rights of Indigenous Peoples: “Consent is a significant element of the decision-making process obtained through genuine consultation and participation. Hence, the duty to obtain the free, prior and informed consent of indigenous peoples is not only a procedural process but a substantive mechanism to ensure the respect of indigenous peoples’ rights.”
1. THAT in implementing solemn commitments of States, the consensus Outcome Document be addressed in a manner that requires maximum compliance. Interpretation of specific paragraphs of the Outcome Document must take into account its whole text, the UN Declaration and other international law.
2. THAT the Permanent Forum and States take steps, in conjunction with Indigenous peoples, to ensure that the commitments in the Outcome Document are fully and effectively implemented. States have a responsibility to ensure that their commitments are not violated in other international forums, as has occurred at the Convention on Biological Diversity meeting following the World Conference on Indigenous Peoples.
3. THAT in fully implementing para. 28 of the Outcome Document and ensuring effective promotion of respect for the UN Declaration, it is important to focus on all existing mechanisms and not solely EMRIP.
4. THAT in accordance with para. 28, effective modification and improvement of EMRIP be undertaken together with Indigenous peoples and EMRIP. A reformed EMRIP should include, inter alia, an expanded mandate that focuses on implementation of the UN Declaration; coordination with UN treaty bodies, mechanisms and specialized agencies; engagement in and promotion of good practices; and undertaking of thematic and other studies. All expert members must have the requisite knowledge and qualifications. Consideration should be given to increasing the number of members and the length of the annual session. Indigenous peoples should effectively participate in this process, including member selection.
5. THAT the system-wide action plan be devised and implemented in accordance with paras. 31 and 40 of the Outcome Document, in collaboration with Indigenous peoples at all stages. A coherent approach to achieving the ends of the Declaration should be ensured through a systematic review of UN treaty bodies, mechanisms and specialized agencies with a view to increasing reliance on, and interpretation of, the Declaration. All such actions must be carried out so as to promote, respect, protect and fulfil Indigenous peoples’ human rights and fulfil related State obligations. A constructive dialogue should be initiated with the Human Rights Committee, in regard to its rationale for not making specific references to the UN Declaration, in carrying out its mandate.
6. THAT the system-wide action plan should encourage UN treaty bodies and mechanisms, as well as the Universal Periodic Review process, to scrutinize the reports and human rights record of States, so as to effectively address rights ritualism. This should include ensuring that State claims are systemically compared to the concerns raised by Indigenous peoples and civil society. The system-wide plan should also ensure that Indigenous peoples’ human rights and the UN Declaration are fully integrated in the post-2015 development agenda and the sustainable development goals.
7. THAT a process be devised to enable full and effective democratic participation of Indigenous peoples’ representatives and institutions in meetings of relevant United Nations bodies on issues affecting them. Financial and administrative support should be maintained and expanded as necessary to ensure that Indigenous peoples can participate effectively in international forums, as self-determining peoples.
To see the references, download this joint statement in PDF.
Learn more about CFSC’s work on Indigenous rights at the international forums.