Jul 22, 2002

Report on the 20th session of the Working Group on Indigenous Populations (First day - Morning)

Monday AM, July 22, 2002
Morning Session 11:00 a.m.

Stephanie Grant, Office of the High Commissioner for Human Rights
I want to welcome especially indigenous peoples who have traveled very far. I also want to report that the VF assisted 78 groups to come for this very important activity. I was informed that 926 persons registered to participate. We can expect a full speakers list. One challenge is to take part yet meet the constraints. The last 12 months have been busy for IP and for our team. Some took part in Durban and those not present, the program of action contains numerous articles that relate to IP. Most recently, the PF met in New York for its first session. The first session was a resounding success. We were pleased with dialogue between members and observers as well as numerous side events.
The final document is before ECOSOC this week with four recommendations. It relates to the secretariat question and in particular the members noted the need for date collection for IPs to prepare their future work and recommendations. The mandate of the forum covers the full range of environment, health, socio-economic issues and human rights. The majority of issues are not directly human rights. The PF members are taking part in the meeting. I would only like to conclude to congratulate all those that took part in the PF and to regard the good interagency support work. It brings together agencies and we thank them for their preparation and participation. It was a very good forum and provides base for future action. My office has taken on a number of activities. I would like to draw attention to two workshops: Indigenous and private sector in Geneva and the second on multiculturalism in Botswana, Africa. I would encourage participants to study them.
I am also pleased to report that under the VF 43 projects and communities are presently being supported. I hope donors will continue to support this fund. I would also mention that the work of the SR who will be present on Friday. I am sure you will all be able to read his useful and wide ranging report. I wish you a successful week and I thank you for your attention and I declare open the 20th session of the WGIP

Prof. Y. Yokota
I thank you for concise and important message. On the chairpersonship, I propose Miguel Alfonso Martinez as our chairperson. He was professor of international law in Havana and long years of service as member of the Sub commission as well as this WG. He is knowledgeable on indigenous issues and he is experienced. This year, this WG is challenged by issues that need to be addressed such as the working relationship between this WG and the newly created PF and the result of an important meeting in Durban and its important implication for rights of IPs. We need person like Miguel Alfonso Martinez that has knowledge, leadership and expertise. I propose him and believe we will have great results.

Judge Motoc
Thank you for your attention, I support the proposal by Yokota. The WG is in a difficult position because the very survival of the WG is at stake. We need cooperation between WG, IP and governments to make sure it exists. We need someone who will fight for us.

Miguel Alfonso Martinez, Chairman of the Working Group
I would like to thank you Yokota and Motoc and your kind words. This morning it has been an honor to receive the prestige of serving over the WG. This is the 17th meeting I have been participating. This is a very significant honor particularly on the 20th anniversary of this entity in the UN. This entity has for 19 years been the main instrument available for IPs to bring awareness to problems faced on a daily basis and for governments to tell us progress to achieve better living conditions for IPs. It is not a particular celebratory moment. Rather it is a moment of concern. What are the concerns generated of continuation of the WG. WG is an anomaly. This WG still has a lot of work to do. It has broad mandate and lots of work to do in human rights of IP and to work towards common achievements. I am not trying to make a statement. The best we could do for this group is not to spend more time but roll up our sleeves and work. Once again, I would like to thank you. Let’s make sure this bureau is for all of you. It is not for any particular group. If you would like to continue contact after this ending session, the IPs, the observer delegates of governments and I will request the secretariat to make sure that government representatives can participate even though they have busy agenda. The agenda requires a formal adoption. I call upon colleagues of the WG to make any observations.

Prof. Yokota
I would like to make one statement. I am not making a formal amendment. I would like to discuss the topic just raised by OHCHR first and then myself on the PF and the future working relationship between two important bodies working for IP in the UN. We could also discuss Durban. These are the two areas, I would like to discuss.

Miguel Alfonso Martinez, Chairman of the Working Group
Thank you for your comment on the agenda. Before, we take a decision and before we continue discussion, I would like to continue the tradition we have observed over many years in the UN WGIP. I would accept proposals by IP represented here beginning with a prayer for us. The indigenous representatives are prepared and if no one objects I would like to give floor to Adler Blackman.

Adler Blackman, Delivered traditional thanksgiving prayer
We are at a critical point at this time and I know a lot of hard work will be accomplished over the next week. Prayer for us all.

John Scott, Secretary of the Working Group
Good morning. The secretariat proposes a draft work agenda and there is a copy in the members’ folders. We will open meeting at 4:30 p.m. for general statements. It will continue Monday afternoon to Tuesday morning. Then 3 p.m. Tuesday moves to Item 4 Indigenous Peoples right to development which is a continuation. Then Wednesday afternoon from 3 – 6 p.m. we look at 20 years of achievement and key part of that them is also future direction. We would talk about harmonizing mandate of PF, WG and SR. then we will be followed by standard. From 9:30 a.m. – 11:30 a.m. entertainment. Friday morning reviewing Decade and then afternoon a draft program. Members are very keen to have agenda item on future activities.

Willie Littlechild, PFII
Thank you very much, Mr. Chairman. I would like to ask your permission to give a brief response. If I may be given a few minutes now I would like to speak as I have a flight to New York this afternoon. In 1977, we were participants in a renewed initiative of Indigenous Peoples to have a voice in the UN system. We have continued to be involved. You have all been true warriors for the promotion, protection and enhancement of IPs. I want to thank Mr. Blackman for invocation and also want to thank all of those that have gone to the spirit world and could not be here for the 20th session. We must look back where we came from yesterday to know where we are today to know where we are going tomorrow. We need to look back 20 years and the record begins with problem of access to the UN building to the first session of the PFII. There have been many workshops, SR on numerous themes. We have come a very long way in the last 20 years. I will leave the rest of the recollection of the 20 years to the IP caucus. I would ask you Mr. Chair to table two reports.
Stephanie Grant mentioned on the UN Workshop on the Private Sector, IPs and HRs. The second report is the UN PF report that will be presented in NY. You will see there is a decision for the establishment of permanent secretariat. According to the new rules of ECOSOC, we will not be able to give the whole report however Chapter 1 will be given. Chapter 2 is a summary record itself that will be available in English only as a conference room paper. The third part is an annex presented from the floor for future work of the PF. If I can add a highlight from the first session, it would be an address by the Deputy Secretary General, Daes and Kofi Annan that welcomed IPs into the UN family. As far as the working relationship, there is a call from the PF members between SR, WG and PF members to establish meaningful relationship to work together as partners. On the establishment of the PF, it was not to be a trade off. It was not to mean the termination of the WG. Both can coexist and work together. We must build on success. You do not terminate because it is successful. You build on its strengths and continue. I see IP with full right of SD so we can contribute to human kind. I see our treaties honored and respected so we can work together for the next decade.

Miguel Alfonso Martinez, Chairman of the Working Group
I think with people such as him on the PF, we will find a formula for these two UN bodies to work together on these UN bodies and bring about happy coordination and harmony. I believe we will have much discussion. I am pleased secretariat able to make document of 1995 focusing on the ties between the PF and the WG. In regard to the future of the WG, it is a document drafted 7 years ago and is still significant. As with the issue raised by Yokota, we close it now and continue our work in the closed session and if we finish, then we will begin at 3 p.m. If there are no other objections or remarks then before closing I would like to formally approve proposal. We really have very limited time. We cannot have continued session or go beyond into evening. Thus the list of speakers for all the substantive issues is in the secretariat from now on. The chair wants to be flexible and yet we have to bear in mind we have limited time and need to know how many speakers we will have. I would urge all participants that before end of morning but themselves on the speakers list. Behind the chair’s podium, you can ask the floor. We need to know how we will fairly and appropriately deliver the time. I am prepared to declare this meeting closed and we understand we will begin formal session at 3 p.m. Or we will continue public session depending on what happens at 3 p.m. I now declare 20th anniversary session closed. Secretariat has an announcement

Parallel Events Lunch Break Sessions
International Labor Organization (ILO)
Briefing on ILO 169j

Lee Swepson
The first convention was adopted in 1957. ILO as the older part of the system was already in charge of running a development project. The UN system asked ILO to adopt ILO 107 on behalf of the whole UN system. FAO everyone participated in the ILO process. In the mid 1970s, IPs came to organize. It became evident that ILO 107 was integrationist. By 1975, everything had changed. ILO responded to calls to revise 107 and bring it up to date with second subject including participation of the entire UN system. There are only these two conventions focusing on IPs, yet IPs can focus on other conventions. Other conventions touch upon and affect IPs. IPs are mentioned in CRC several times. There are two declarations. These two when adopted are declarations and not conventions, therefore cannot be ratified. Convention 107 was ratified by 27 countries, and convention 169 ratified by 16 countries. Convention 107 is automatically denounced. We just had Venezuela and Dominica ratified. It was just approved for ratification by the Senate of Brazil. Chile is also working on it. I will not review the convention in detail. What I want to do is make a basic presentation and then answer questions. Convention does not contain a definition. It contains a statement of coverage. There is no definition under international law.

It covers people who live in tribal social organization whether they are indigenous. Indigenous is a tricky term. There are some truly indigenous peoples but there are people who are called indigenous but no information saying they were there before. ILO uses both words indigenous and tribal to cover all possibilities, such as India and Bangladesh. The term of peoples feels that it limits the right of Self Determination. What ILO says is that definition belongs to UN. This is a document focusing on economic, social and cultural rights. What the ILO did was say that it is up to the UN to define. Self-identification is an important element. The fundamental article is Article 6. It says everything that a government does has to be done in consultation with the peoples concerned. Those consultations have to take place in good faith and with consent. It doesn’t say IP have the right to veto. It says there has to be involvement. There has to be a “real” consultation that allows people to have real input into the decision-making process, including capability to change governments’ plans.

There really isn’t any other international law on land rights outside of ILO 169. The DDRIP have followed the ILO 169. Most indigenous peoples around the world don’t have same land ownership regime as it is with the west. What this convention means to convey is that if IPs occupied land, then IPs have rights. In Brazil for instance, IPs cannot own land. We have had cases in India on old cases where tribal people were displaced from land, they only have right to compensation for what they have title to. IPs in India has some rights beyond title. In fact, the rights taken into consideration have to cover a wider area, such as simultaneous use, where herding takes place by one group and hunting and gathering by another one. Convention isn’t to be interpreted that one gets all of rights and others get nothing.

We have article on non-discrimination. Indigenous peoples are all workers. IP are at the bottom of every social economic indicator. In many cases IPs are migrant workers without language and background to protect themselves against pesticides. There are some unique provisions concerning health and education. IPs has the right to the same level of education and health care of everyone in society and to be adapted to their own culture. When IPs is ready, they can take control of their own health and education system. Governments can pass responsibility when IPs are ready and with the same level of resources. IPs have the right to adapt to their own needs and culture. There are obligations for the state to take coordinated management of indigenous affairs. There is a ministry of indigenous affairs who is responsible. In most countries, responsibility affecting IPs is all over the government and there is no way to prevent one ministry from undermining the protective measures in another ministry. ILO supervisory system is very active and report at most every 5 years. ILO doesn’t have same system as UN. NGOs have a higher status and partner with the ILO. It has identified NGO as trade union and employer. They have the right to participate in the supervisory process. ILO also does receive complaints from NGOs. Governments have to send report to workers/employers groups and those groups can feed in. In Guatemala, we have been receiving information from indigenous groups through office of a trade union. Norway asks the ILO to take into account as though it was a government department, the Norwegian Sami Parliament. Otherwise, we would not have been able to deal with them directly.

There have been a higher number of complaints filed by trade unions on behalf of IPs. It is a tool not much used but on this convention. All of the cases deal with land rights. All of the issues are the same. Government carried out fake consultations. They would meet with a so-called indigenous leader, but the traditional people were not actually involved and as a result IPs lost land. The ILO committees said we cannot rule on individual cases, but the procedure followed was wrong and untenable. You need to do new consultations. An international convention is international law if it is ratified.

ILO has no blue helmet or air force. We cannot go into countries to enforce. We can give you tools with which to work. We can say to the international supervisory process that government is bound and has failed to meet obligation. Once a convention is ratified is binding.

The ILO cannot go physically to a country when the government doesn’t want us to be there. ILO works with many NGOs. We can often come and talk. We work with universities, government departments and indigenous organization in various ways. The ideal is if government invites ILO to talk about explanatory system where ILO explains what ILO entails in a public setting. A prominent university creates a conference and invites members of government, IPs, ILO and public. Beyond that, we carry out all kinds of consultations and advice in Chile at the invitation of a very well organized group. We assisted in information system seminars conducted by indigenous representations. There are all sorts of ways. The highest, most visible form possible is best.

Does the term peoples mean secession? Does territory mean violations of national sovereignty? These questions often come up when discussing ratification with governments.
In India there is an exploratory and explanatory process with details being worked out.
We work with those that want to work with us. If we get a letter from the King of Morocco, we will be there. Any official government organization is easy to respond to. If any ministry or department sends an invitation letter, we will do that. We do a lot of information work.

We are subject to national legislation so we cannot address as equal partners. Could ILO itself looks for IPs bearing in mind the convention as it is? Then IPs could promote the same document? Is it possible to have the political instrument in my hand? It is an international convention. You should use it already. It is the highest international law on this subject that exists. It is what you got and you should use it. The ILO has adopted the convention on behalf of the UN system. ILO does have an interest in this because IPs are workers. Economic activity traditionally involves us. We do not plan a large international conference. It is a national conversation now among governments. NGOs have status in ILO. Some NGOs have higher status. There is a role for NGOs to play in the ILO process. The ILO will work with those that want to work with us. Much of our work is promotional. It is internal political action. In the meantime, use it in whatever way you can. It is a political instrument not having been ratified.

The international community cannot force action. We can promote. We can make law available but we can’t send in international armed forces. Often, these legal instruments do have a positive effect. Knowing that what we do is promotional and assistance, but it is not compulsory. When a government decides to try to improve, then the assistance is there. In Peru, some years ago, the summer institute of linguistics which is an organ of the bible translators was given full authority over indigenous education in the forest area of Peru. This is not the only place where aspect of indigenous affairs was handed off. ILO asked what control was exercised and what was affect. This did not happen immediately. Government took back. We are awaiting a report back this year from Peru. International supervisory process is a tricky one. We do not send in on the ground investigators. We rely on what we get from contacts. A lot of the on the ground information has to come from on the ground NGOs or we won’t have it. All ILO conventions are universal. There is a lot going on in Latin America for ILO action. There are cooperation projects. Latin America has given the most active thought. The project I spoke earlier has decided to focus on Africa and Asia because those are regions where there has been the least thought. We are in the process of carrying out to assist the IPs of Kenya in preparing their input into the constitutional review in Kenya. We have also created cooperatives, which are economic institutions from indigenous institutions to assist in their own economic projects. We respond to requests within the limits of resources we have available. If we receive a request to attend a seminar, we make every effort to be there.

I can tell you that the President of Chile and government both support ratification. It was submitted for parliament vote. Case came up that convention was unconstitutional. It said had to have higher majority to ratify. It is a legal and a political internal problem. Last year we received ratification from Argentina. It was affirmed 10 years ago by government but ministry held onto it until recently.

Self-definition is an important component. Roma don’t identify as IPs. They identify as ethnic minorities. Norway, Denmark and Netherlands have ratified. They have been explicitly covered from Colombia from a statement, flexibility of the statement of coverage. The coverage is a little different. If ILO 169 ratified would require them to give land rights but of course not, they do not have land rights.

ILO has produced some guidance material to explain more the meaning of the convention. One of the obstacles to ratification in Sweden is one word based on Norwegian translation.