Experts Introduce Studies on Discovery Doctrine, Sexual Health, Optional Protocol to Strengthen Declaration
State-designed policies and laws that exacerbated the marginalization of communities must be reviewed, overhauled and transformed into inclusive and transparent legislation that ended the “nefarious underbelly of colonization”, delegates heard today as the United Nations Permanent Forum on Indigenous Issues continued its thirteenth session.
Considering three studies — the Discovery Doctrine, sexual health and reproductive rights and an optional protocol to strengthen the United Nations Declaration on the Rights of Indigenous Peoples — participants shared triumphs and concerns. While much progress had been made to address rights and aspirations, many agreed, much more must be done to right the wrongs regarding land claims, discrimination and disenfranchisement.
With the two-week session focused on “Principles of good governance consistent with the United Nations Declaration on the Rights of Indigenous Peoples: articles 3 to 6 and 46” (document E/C.19/2014/4), speakers stressed that rights — from pursuing traditional livelihoods in Africa to chewing the coca leaf in Bolivia and protecting the rights of Crimean Tatars — must not only be recognized, but also protected, including by bringing violators to justice.
Government representatives outlined special measures to address indigenous peoples’ needs, with several pointing to constitutional provisions that supported their rights. South Africa’s speaker said his country was based on diversity and had, in 2009, established a dedicated Department of Traditional Affairs to deal exclusively with indigenous affairs, including leadership, governance and the administration of justice. Finland’s representative said that good governance also meant the protection of linguistic rights, and his country had adopted the Sámi Language Act to enable those people to enjoy services in their own language.
Nicaragua’s delegate cited the passage of an autonomy law, which had sought to transform relations with indigenous peoples and peoples of African descent. The country also had created multi-ethnic dialogue forums, provided support to indigenous initiatives and allocated budgets for autonomous governments.
However, an indigenous parliamentarian from Nicaragua said his Government could do more, echoing the sentiment expressed by several indigenous speakers, who expressed dismay with their Governments. Forum member from Bangladesh, Raja Devasish Roy, agreed that, while progress had been made in some countries, more dialogue was needed to yield more positive results.
A representative of the International Public Organization Foundation for Research and Support of Indigenous Peoples of Crimea called on the Forum to find a solution by diplomatic and peaceful measures to the conflict in Crimea involving Tatars, Karays and Krymchaks. Noting that Ukraine and the Russian Federation had abstained from voting on the Declaration, he asked the Forum to ensure the physical safety and recognition and observance of the rights of indigenous people in Crimea.
Forum member from Estonia, Oliver Loode, expanded on that concern, saying the situation in Crimea was today, perhaps, the most urgent global indigenous issue. The situation of Crimean Tatars was particularly disturbing, as they were now required to apply for resident permits should they choose not to take up Russian citizenship. If they chose not to apply, they could be declared illegal aliens on their own land, which violated the Indigenous Peoples’ Declaration.
He said there must be a way that Crimean Tatars could live with dignity in their homeland, including, for example, by allowing dual citizenship. He asked the Forum to make recommendations on the issue and called on the world community, the United Nations and its agencies, as well as indigenous groups to pay close attention to the Tatars’ situation and support them.
Presenting the study on the Doctrine of Discovery, particularly its impacts on indigenous peoples and the means to redress the wrongs, was Edward John, Forum member from Canada, who said the analysis had concluded that the Doctrine, in its many manifestations, represented “the nefarious underbelly of colonization”. While the Doctrine was not well understood, its resilience was embedded in the laws, policies and practices of colonizing cultures. It had been used to justify the exploitation, enslavement and subjugation of indigenous peoples, thereby providing a foundation for genocidal approaches against them. While the findings had been discredited by courts, churches and human rights bodies, more must be done, not only to repudiate it, but to take actions to redress its impacts.
Recounting his experience at a residential school run by the Catholic Church, he said his language and culture, having been deemed inferior and “savage”, eventually died, as part of a deliberate Government policy. Today, those truths were being made public across Canada. The Prime Minister last year had admitted that the programme had aimed to isolate children from their family’s influence and assimilate them into the dominant culture. He urged that the Doctrine be replaced by contemporary human rights standards, including a principled approach to redress, which would return sovereignty to indigenous communities through decolonization processes. Jurisdictional space for indigenous peoples’ self-determination must also be established.
Some speakers provided detailed examples of a pressing need to address land disputes. A representative of the Oglala Lakota Nation, spoke on behalf of five North American indigenous peoples’ groups — Coastal Band Chumash Nation, Indigenous Peoples’ Council on Biocolonialism, American Indian Movement of Colorado, Fourth World Center for the Study of Indigenous Law and Politics and Sacred Places Institute for Indigenous Peoples. He said no State had the right to protect the integrity of a territory it had seized illegally and then deny the right to self-determination. Pointing out that the United States’ Vice-President Joseph Biden had recently professed that no nation had a right to grab land from another, the speaker said “we agree”, noting that the United States had continued to occupy the Oglala’s Black Hills and had refused to engage in talks over land disputes.
He urged the Forum, as well as the Economic and Social Council and the United Nations as a whole to repudiate the deliberate State practice of “Christian discovery” and called for a special rapporteur to eliminate that Doctrine wherever it was embodied in State law or practice. He also recommended that the General Assembly request an advisory opinion of the International Court of Justice on the enforceability of treaties between indigenous people and States.
Introducing the study on an optional protocol to the Declaration, Megan Davis, Forum member from Australia, recalled it had been written in response to a recommendation by the Arctic Caucus concerning provisions in the Declaration pertaining to land, territories and resources. Despite ongoing discussions about launching a mechanism to monitor the Declaration’s implementation, the study had found that, while the Forum, the Special Rapporteur and the Expert Group all had contributed to enforcement, each had significant commitments and workloads preventing them from functioning as a cohesive oversight body.
She said the Alta Declaration, adopted at the 2013 preparatory meeting for the World Conference on Indigenous Peoples, had recognized the value of creating a new body to promote, protect, monitor, review and report on the Declaration’s implementation; it was to be established with the full and equal participation of indigenous peoples. The issue had received attention thanks to the work of the Special Rapporteur, who had observed, during his country visits, a lack of knowledge and understanding about the Declaration and the issues facing indigenous peoples. Raising awareness among Government actors was crucial, she said, adding that an oversight mechanism could be empowered by an optional protocol.
When the floor opened for discussion, representatives of indigenous groups and Governments alike presented their experiences with governance, from the local village level, to the municipal, national and international levels. Indigenous speakers pressed States to acknowledge that governance was central to self-determination and sustainable development in indigenous communities. Many urged Governments to strengthen governance structures in indigenous communities to ensure that they were culturally legitimate, as well as to seek the free, prior and informed consent of indigenous peoples on any reforms that directly or indirectly impacted governance in their communities.
With broad agreement among indigenous speakers that self-determination was critical to governance, the lack of respectful relations between indigenous communities and Governments was a major impediment. The governance processes must build, not diminish, community capacity. On that point, a representative of the Australian Human Rights Commission said Aboriginal peoples’ ability to self-govern had been impeded by the application of the terra nullius doctrine and the lingering effects of colonization. Legislation that had forced their removal from lands had disempowered them by denying them the right to make decisions about their lives. Non-indigenous governance sought to manage economic risk, whereas indigenous peoples’ focus was on maintaining cultures and identities.
Echoing another common theme, a Forum member from the Philippines called for a review of discriminatory laws that further marginalized indigenous peoples. She also emphasized the importance of holding States accountable for human rights violations. In the same vein, a representative of the Asia Indigenous Women’s Network said “good laws do not necessarily mean good implementation”, and she recommended that government practices align with the Declaration.
Similarly, a Forum member from the Russian Federation said that, while times had changed, with the struggles of the 1990s producing advances for indigenous peoples in many countries, problems persisted. In response, many indigenous groups in her country were governing themselves or lived in autonomous districts run by local self-government, which was a start to addressing the challenges of economic development. Now, there was a need for a monitoring mechanism on a global level to report on violations against indigenous peoples, she said.
However, a representative of the Russian Federation, attending as an observer, held that an optional protocol to a non-legally binding document was not feasible. Further, a monitoring mechanism was ill-advised since the Human Rights Council was a more appropriate forum.
Ms. Davis, responding to the Russian Federation’s representative, argued that the existing mechanisms did not address indigenous peoples’ concerns about implementation. On the mischaracterization of the Declaration as a non-legally binding document, she said the report outlined international law as it applied to General Assembly declarations.
Clearly, to some speakers, an optional protocol would clarify the Declaration’s ambiguities. A representative of the Indigenous Peoples of Africa Coordinating Committee pointed to the absence of an instrument for dealing with land issues on the continent. As an example, he said Africa’s indigenous peoples’ lands and resources were facing immense threats in the form of extractive industries, agricultural expansion and climate change, areas largely governed by State-designed policies that failed to recognize their rights to land, resources and traditional livelihoods.
A representative of the Arctic Caucus favoured an optional protocol that embraced the rights to self-determination, self-government and autonomy, without prejudice to people living under foreign occupation or other international arrangements. It should be among the outcomes of the World Conference on Indigenous Peoples, a high-level event to be held at Headquarters in September.
Forum member from Bolivia, Maria Eugenia Choque Quispe, introduced the report of the international expert group meeting on sexual health and reproductive rights, with regard to articles 21, 22(1), 23 and 24 of the Declaration. The study showed that indigenous peoples suffered disproportionately from a lack of access to those rights and services. Many countries had yet to recognize sexual and reproductive rights for indigenous peoples, a problem exacerbated in poor and marginalized communities. The collection of disaggregated data was also difficult, because basic health care — such as childbirth and midwifery services — often was not available in remote areas, and if they were, they did not take into account indigenous culture, or provide staff who understood indigenous languages.
She said participants examined development models based on extractive industries, which directly impacted indigenous peoples’ sexual health and reproductive rights. They called on the Forum to consider such issues, as well as on States to adopt legal and normative measures, and allocate resources to correct those health inequalities, the causes of which included the sometimes triple discrimination faced by women. States also should offer free health services in indigenous languages, subject to the free, prior and informed consent of indigenous peoples. For its part, the United Nations should document the impacts of environmental violence on indigenous communities.
Some speakers were concerned about contamination linked to extractive industries. A representative of the International Indian Treaty Council pointed to an example of “environmental violence”, which, the Council believed, was sanctioned by international law. The United States, for example, manufactured and exported pesticides that were banned in that country, which negatively had impacted reproductive health and caused sometimes fatal illnesses in indigenous communities in Ecuador, Guatemala, Mexico and Nicaragua. She called for a legal review of internationally banned chemicals and for a halt to the export and import of banned and unregistered pesticides from countries prohibiting their use. She urged United Nations entities to conduct a study in partnership with indigenous peoples’ organizations to document the linkages between environmental violence and sexual exploitation, and to evolve concrete recommendations to guard against that.
To address persistent patterns of discrimination and exclusion, a representative of the United Nations Population Fund (UNFPA) said recent indigenous peoples’ claim for culturally appropriate sexual and reproductive health services was reflected in the agency’s policies and programmes.
Also delivering statements in the discussion were Forum members from Cameroon, Burkina Faso and Kenya.
Representatives of the following organizations also participated: Australian Human Rights Commission, Escuela Global de Liderazgo de Mujeres Indigenas, Kus Kura S.C., Forest Peoples Programme, Consejo de Mayores de Térraba, Asociación Cultural Indígena Teribe, Confederacion Sindical Unica de Trabajadores Campesinos de Bolivia, Parbatya Chattagram Jana Samhati Samitti, Bangladesh Indigenous Peoples Forum, Jumchab Metta Foundation, Tribal Link, Organismo Indigena para la Planificacion del desarollo, Assyrian Aid Society, TAMAWAST pour la Culture et le Developpement, Africa Caucus, Enlace Continental de Mujeres Indigenas de las Americas, Native Youth Sexual Health Network, Global Youth Caucus, AIM-WEST American Indian Movement, National Congress of Australia’s First Peoples Limited, Foundation for Aboriginal and Islander Research Action, Cordillera Peoples Alliance, National Alliance of Indigenous Peoples in the Philippines, Alliance of Indigenous Women in the Philippines BAI, Foundation for Research and Support of Indigenous Peoples of Crimea, Federation of Saskatchewan Indian Nations-Health and Social Development Secretariat, Incomindios, AGIM and Friends of the Earth.
Interventions were made, as well, by delegates from Guyana, El Salvador, Cuba, Ecuador, South Africa, Denmark (also on behalf of Finland, Sweden and Greenland), United States, Nepal, Iraq and Australia, as observers.
Additionally, a representative of the Expert Mechanism on the Rights of Indigenous Peoples took part in the discussion.
The Forum will reconvene Wednesday, 14 May, at 10 a.m. to continue its work.