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SUMMARIES OF THE PRESENTATIONS
MADE BY THE PANEL OF EXPERTS
Presented at
the Inaugural Session
of the Special Meeting of the Working Group
March
11, 2002
SPECIAL MEETING OF THE WORKING GROUP
TO PREPARE THE PROPOSED AMERICAN
DECLARATION
ON THE RIGHTS OF INDIGENOUS PEOPLES
Original: Spanish Hall of the Americas
March 11 -15, 2002
Washington, D.C.
List of Experts:
1. Ana V. Araújo, Brazil, Director of the Rainforest Foundation in New
York, but not long ago, representative and defendant of the indigenous
rights in Brazil
2. Benedict Kingsbury, New Zealand, Professor of the International
Department of the University of New York.
3. Wayne Lord, Canada, Government of Canada, Department of Foreign
Affairs.
4. Fergus Mackay, New Zealand, lawyer specializing in human rights and the
rights of indigenous peoples.
5. Augusto Willemsen Díaz, Guatemala, Guatemalan Legal expert. Human
Rights Center of the United Nations in Geneva, in charge of issues
concerning the future Universal Declaration on the Rights of Indigenous
Peoples.
Summaries:
Mrs. Ana Valéria Araújo
The situations of indigenous peoples in the Hemisphere are quite diverse,
and that makes the drafting of a Declaration on the Rights of Indigenous
Peoples very complex. But it is necessary to put together an international
instrument that will provide Indians with basic standards for the
recognition of their rights in relation not only to the nation states in
which they live but also to the globalized world society.
Regarding section 5 of the Declaration, making the effectiveness of the
American Declaration subject to domestic law nullifies any progress and
renders the text of the Declaration itself innocuous.
Also of concern is that the Declaration gives member states the discretion
to define, according to their own understanding, what sort of public
interest would justify the removal of indigenous peoples from their
territories. The text of the draft should
emphasize that removal would be used only as a last resort.
Discussion of collective intellectual property rights necessarily involves
the establishment of a specific system that recognizes the distinct
characteristics of the indigenous system of creating knowledge.
The text must be innovative and comprehensive, capable of fostering
evolution in the thinking of governments and officials, which is the role
of international law.
MR. BENEDICT KINGSBURY:
Addressed the topic of self-determination with reference to Article XV of
the Draft Declaration. He argued that a new understanding of
self-determination has emerged in local and
international practice. Until recently, the question of self-determination
was understood as an opposition between the rights of states
and the right of indigenous peoples. But a new approach sees
self-determination as structuring a relationship between indigenous
peoples and states. Professor Kingsbury argued that a relational approach
to self-determination should be placed a the center
of the Draft Declaration, not confined to Article XV, and should inform
all of the specific articles about education, health , lands, environment
etc. These articles should set principles structuring the relations
between indigenous peoples and states. The Draft should include a
requirement that states and indigenous peoples negotiate their
own specific arrangements on all of these issues to realize
self-determination within the framework of the general principles of the
Draft Declaration.
Professor Kingsbury argued that a strong and effective OAS Declaration is
becoming possible because of dramatic changes in the law and policy of
state-indigenous peoples relations in the Americas over recent years. A
strong, well-thought out Declaration elaborated jointly by states and
indigenous peoples is preferable its ad hoc and inconsistent formulation
of principles on indigenous issues that otherwise will occur in relation
to the Free Trade Agreement of the Americas, the Inter-American
Development Bank, human rights bodies, regional programs for democracy
promotion and poverty reduction, etc. Professor Kingsbury believed that
a historic possibility now exists to build a good relational process to
adopt a strong policy, and begin to strengthen national dialogue and
implementation.
MR. WAYNE LORD
Indigenous issues are a high priority at the national, regional and
international level. Progress has been made in building dialogue between
states and indigenous people that leads to reconciliation, new
relationships and partnerships as well as political and practice
agreements. However, many serious problems remain; many indigenous peoples
are struggling for their very existence. There are conflicts and disputes.
In this context, we have a historic opportunity to achieve a strong and
effective declaration, which can provide a framework; a set of principles
to inspire and guide us. Just as important is the process—a process that
builds confidence and trust between states and indigenous peoples will
create the conditions of respect, and transparency leading to
understanding and agreement.
Experts have an important role and responsibility in influencing both the
process and the outcome.
MR. FERGUS MACKAY
The presentation focused on the rights set forth in
Section V of the Proposed Declaration, which includes property rights,
labour rights, intellectual property rights and the rights to development.
It began by relating the right to self-determination to property rights
and not that that right includes rights to own lands,
territories and resources and the right to jurisdiction over those lands
and resources. It was not that the United Nations Human Rights Committee
has previously stated that Indigenous peoples hold this rights
and that it applies to ownership of territory and resources. It also noted
that many of the rights presently set forth in the Declaration are presently recognized by and binding on member states
by virtue of ratified human rights instruments and customary international
law. The Decision of the Inter-American Court on Human Rights in a recent
case was used to illustrate this point. The Court’s decision in that case
was related to Article XVIII(1)(2) and
(8) and it was stated that these paragraphs are consistent with the
Court’s decision.
Article XIII(7) was also discussed and it was noted that this paragraph
conflicts with the rights set fourth in Article XVIII because it appears
to allow states to unilaterally declare Indigenous territories to be
protected areas. It was suggested that in order to be consistent with
Article XVIII international instruments and practice that the paragraph be
amended to provide for Indigenous consent to protected area status, for a
prior resolution of territorial rights and for the right of Indigenous
peoples to declare their territories to be protected areas. Article
XVIII(5) was described as inadequate because it failed to provide
meaningful protections to Indigenous peoples affected by resource
exploitation. It was also suggested that Article XVIII(6) be amended to
remove the "public interest" limitation from the protection from
involuntary relocation found in that article. Intellectual property
rights, found in Article XX, were described as largely consistent with
international standards, except for paragraph 3, which adopted a position
contrary to the Convention on Biological Diversity. Finally, Article XXI
was described as adequate and consistent with international standards.
MR. AUGUSTO WILLEMSEN DÍAZ
He referred in considerable detail to newly coined constitutional
provisions in Bolivia, Colombia, Ecuador, and Peru, which address the
exercise of jurisdictional authority by the natural authorities of
indigenous communities. He indicated that a new era had begun, relegating
to the past the days when legal systems of
indigenous peoples were excluded or were included on an unacceptably
subordinate basis.
Mr. Willemsen said that in the area of law, genuine legal pluralism was
the only valid and legitimate solution in multiethnic, multicultural, and
multilingual countries where indigenous peoples have maintained and
maintain, through a profound daily consensus, their own age-old legal
systems that have always been applied in regulating social organization
and conduct and in resolving conflict.
To afford true depth to the participatory democracy we all longed for, one
essential and urgent measure was to maintain and enhance respect for the
legal systems of indigenous peoples. This was a significant means of
bringing peace and harmony to communities and, therefore, to society
generally.
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