PERMANENT COUNCIL OF THE ORGANIZATION
OF AMERICAN STATES
COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS

OEA/Ser.K/XVI
GT/DADIN/doc.5/99
1 December 1999
Original: Spanish

MEETING OF THE WORKING GROUP TO PREPARE THE
PROPOSED AMERICAN DECLARATION ON THE RIGHTS
OF INDIGENOUS POPULATIONS

Held in Washington, D.C., November 8-12, 1999

REPORT OF THE CHAIR

CONTENTS

I. BACKGROUND
II. AGENDA OF THE MEETING
III. PROCEEDINGS

APPENDICES

  1. Proposed American Declaration on the Rights of Indigenous Populations
  2. Remarks by Ambassador Claude Claude Heller, Permanent Representative of Mexico to the OAS and President of the Working Group Charged with Considering the Proposed American Declaration of the Rights of Indigenous Populations (Spanish Only)
  3. Remarks by the Secretary General, César Gaviria to the Working Group Considering the Proposed American Declaration of the Rights of Indigenous Populations" (Spanish Only)
  4. List of Documents distributed by the General Secretariat

REPORT OF THE CHAIR

I. BACKGROUND

At its twenty-eighth regular session, the General Assembly, in resolution AG/RES. 1549 (XXVIII-O/98), instructed the Permanent Council to convene a meeting of government experts and to take the measures it considers appropriate with a view to the adoption of an American Declaration on the Rights of Indigenous Populations at the twenty-ninth regular session of the General Assembly.

The Meeting of Government Experts to Analyze the Proposed American Declaration on the Rights of Indigenous Populations was held on February 10-12, 1999. The conclusions of the meeting were published in the final report, document RECIDIN/doc.10/99, and were subsequently considered by the OAS General Assembly, which, at its twenty-ninth regular session, in resolution AG/RES. 1610 (XXIX-O/99), and bearing in mind the progress made at the Meeting of Government Experts, established a working group to continue consideration of the proposed declaration. The working group was installed on July 28, 1999, and it was agreed that it should remain under the chairmanship of the Chair of the Committee on Juridical and Political Affairs.

The Working Group met at headquarters from November 8-12, 1999. The Working Group had before it background documents on the discussion of the topic by the various bodies, including the comments of the member states, organs, and entities of the inter-American system on the proposed declaration. The list of documents is attached as an appendix to this report.

II. AGENDA OF THE MEETING

1. Presentation by the Chair

2. Consideration of the operative section of the Proposed American Declaration on the Rights of Indigenous Populations

a. Scope of application and definitions
b. Human rights
c. Cultural development
d. Freedom of association and political rights
e. Social, economic, and property rights
f. General provisions

3. Other business

III. PROCEEDINGS

A. Organization of the Work

The Chair of the Working Group of the Committee on Juridical and Political Affairs, Ambassador Claude Heller, Permanent Representative of Mexico to the OAS, and the Secretary General of the OAS, Dr. César Gaviria addressed the Working Group (both statements are attached to this report).

The Vice President of the Inter-American Institute of Human Rights, Rodolfo Stavenhagen, then took the floor. He recommended that mechanisms should be created to include indigenous populations in the drafting of international legal instruments. The Chair of the Inter-American Commission on Human Rights, Robert Goldman, also spoke. He expressed his hope that the proposed declaration would be adopted at the next regular session of the General Assembly, to be held in Windsor, Canada, in 2000.

The Chair explained the working procedures to be used during the meeting. Those procedures had been approved by the Committee on Juridical and Political Affairs, which served as the preparatory body for the meeting of the working group. In that connection, the Chair announced that the proceedings would begin by dealing with the operative section of the proposed declaration on a chapter by chapter basis grouped under specific topics, as indicated on the agenda, given that the preambular section had been widely discussed at the meeting of this past February. He said this did not, however, preclude further consideration of the preambular section once review of the operative section is completed. He also commented on the modality for the participation of the representatives of the indigenous populations, in accordance with General Assembly resolution AG/RES. 1610 (XXIX-O/99), and on the basis of the agreements reached in the Committee on Juridical and Political Affairs. In that connection, when discussion of each of the three above-mentioned topics begins, the representatives would be allowed to present their views. In the light of the progress being made with respect to the work, the representatives would be allowed to speak again at the conclusion of the consideration of each chapter. The Chair underscored that the statements would be duly recorded in the report of the Working Group. He therefore invited both the delegations of the member states and the representatives of the indigenous populations to make their statements brief and, as far as possible, relevant to the topic under discussion.

The representatives of the indigenous populations read a statement on their position with respect to the procedure for their participation in the Working Group. In that regard, they felt that the procedure was inadequate and did not reflect the spirit of General Assembly resolution AG/RES. 1610 (XXIX-O/99). They requested a review of the respective decision in order to permit full participation by the representatives of the indigenous populations in decision-making. Nonetheless, they announced their decision to participate in the meeting while expressing their position as follows:

a. Participation in the discussion; they requested a full and unrestricted right to speak, as well as the opportunity to comment on the statements of the government delegations.

b. Adoption of the agreement: they requested that the government delegations consider the actual situation of the indigenous populations before taking a decision.

c. Recording the statements: they requested that the statements of the representatives of the indigenous populations be recorded and that these statements, as well as the conclusions of the meeting, be transmitted to the governments.

Furthermore, they emphasized the need for obtaining resources to allow the representatives of indigenous populations to continue to participate in the consideration of the proposed declaration.

The Chair of the Working Group indicated that participation by representatives of indigenous populations was guaranteed under agreements reached earlier by the Committee on Juridical and Political Affairs. He promised that the spirit behind the meeting was constructive and that the proposals made by those representatives would be duly reflected in the report. He also indicated that the examination of the draft declaration would not be completed at this meeting, and that the decision-making phase would therefore follow a subsequent reading of the text. Lastly, the Chair stated that the Organization had expended the effort to hold a five-day meeting, despite its serious financial constraints, because of the importance it attributed to the matter.

A number of government delegations emphasized the importance of abiding by decisions reached within the Committee on Juridical and Political Affairs concerning participation by representatives of indigenous populations, which were recapitulated by the Chair at the beginning of the meeting. It was indicated that those decisions ensured suitable participation by those representatives and was consistent with the aforementioned General Assembly resolution.

The representatives of indigenous populations took the floor on various occasions throughout the working group proceedings. Their statements are recorded in this report along with the comments made by member state delegations and by representatives of various bodies and institutions of the inter-American system, such as the Inter-American Juridical Committee (CJI), the Inter-American Commission on Human Rights (IACHR), the Inter-American Indian Institute (III), and the Inter-American Institute of Human Rights.

B. Consideration of the Proposed Declaration

a. Section One: Definitions

The Chair proposed that deliberations begin with the identification and discussion of concepts whose definition would shape the rest of the text, so as to provide a shared focus for the discussions. He suggested, therefore, that the scope and meaning of terms such as "people," "population," "self-determination," "autonomy," "self-government," and "territory" be defined and set forth in a chapter entitled "Definitions." He circulated a written proposal containing three articles for Section One: "Definitions" (Article 1: Peoples and Populations; Article 2: Self-Determination; Article 3: Territory). The Chair clarified that these articles were drawn from a number of available sources, including comments by the member states, the Inter-American Juridical Committee, and the Inter-American Indian Institute.

Regarding the terms "people" and "population," some delegations expressed a preference for the latter term, citing international law and a number of General Assembly resolutions. They stated that the expression "people" was tied to the concept of self-determination, and that international law did not accord that right to indigenous communities. Some delegations said that a safeguard like the one included in Convention 169 of the International Labour Organization might be advisable, since it would allow the term "people" to be used without the implications it normally has under international law.

Several representatives of indigenous populations indicated that it would not be appropriate for states to define the concept of "indigenous populations," this being the sole province of the communities involved. Self-identification, as an essential criterion for the recognition of an indigenous people, is not subject to any obligation. No term could encompass the multiplicity and variety of such communities existing in the Hemisphere. They indicated that they were neither ethnic minorities nor racial minorities nor populations (the latter term referring to communities not necessarily invested with historical continuity). They defined themselves as peoples, or collective, autonomous entities, with age-old languages, whose organization, shaped by lands, waters, forests, and other natural resources, afforded them a special world view and a unique social structure ensuring their continuity.

Other representatives of indigenous populations pointed out, however, that a clearer definition of such concepts would be an important step forward, as it would help to assure progress in a definition of the rights derived from them.

The representatives of indigenous populations indicated that the progress made, both at the level of national law and in the efforts of multilateral organizations, show that discussions have focused on the content of the rights of indigenous communities rather than on attempts to arrive at some sort of definition. They said it was important here to preserve references to their collective rights, since their individual rights were already enshrined in numerous instruments of international law. They concluded that the term "people" should remain in the draft Declaration, and that, should it not, examining the subsequent articles would be meaningless.

In this context, the National Congress of American Indians proposed that Article 1 of the draft Declaration read as follows:/

"Indigenous people have the collective and individual right to maintain and develop their identities and specific characteristics, including the right to identify themselves as indigenous and to be recognized as such."

Some government delegations, after hearing the position taken by the representatives of indigenous populations, said that it would be wise to discuss the criteria by which the latter define themselves as peoples.

With respect to the concept of "self-determination," a number of government delegations indicated that, in the United Nations context, the concept was still evolving, and that this term should be defined on the basis of agreements reached by the states and the indigenous populations at the national level. In any case, the concept must not have the effect of diminishing the political integrity of the state.

The representatives of indigenous populations indicated that the terms "people" and "self-determination" could not be separated, and that the latter accorded political status, as well as economic, social, and cultural rights, which the indigenous communities could not relinquish, since these constituted a historical right that had been wrested from them. They also stated that "self-determination" could not be defined by those outside the community in question, this being the exclusive province of that community. Self-determination was a right of indigenous peoples, while sovereignty pertained to the state. In no way was self-determination meant to infringe upon the territorial integrity of the state. The intent was, rather, to enhance national unity, to secure recognition of the existence of such communities, invested with a distinct and special world vision, within the context of existing states. The right to secede was not the aim. Genuine autonomy must be built upon a pluralist foundation, with due recognition of the indigenous communities' own institutions. Such autonomy was one way to exercise self-determination within a state.

Some government delegations said it would be wise to discuss the concept "self-determination"–its scope and meaning in the context of a modern international community. Other delegations expressed their willingness to offer indigenous populations a wide margin of autonomy in the economic, social, cultural, and similar arenas.

On the concept of "territory," the representatives of indigenous populations said this was deeply connected with their spirituality, their culture, their language, their way of life, and their relationship with the environment, and thus it was important that the term remain in the draft Declaration. Land, in Western culture, was something to be worked, a source of wealth subjugated to commerce. For the indigenous peoples, it was an element of their very lives, a factor in their existence as a group or community within an integrated world view that included their traditional approaches to political representation. The concept of territory was vital to defining all the rights of indigenous peoples. Moreover, the term "lands" could not sufficiently express that reality. However, since the populations had developed such a diverse range of approaches to territorial relations, any attempt to define the word "territory" would impose limitations on the traditional rights of indigenous communities.

Finally, the representatives of indigenous populations stated that what was being discussed was a proposed declaration, not a draft convention. They therefore stressed that a declaration was an "aspiration" in terms of the rights of such populations, and that therefore it could not be subject to the constitution or the domestic legal norms of states, as this would clearly be retrograde insofar as such an aspiration was concerned. The objective of such a declaration was to open a path to dialogue based on a shared focus.

In that connection, the representative of the Inter-American Indian Institute stated that the fact that a declaration was being discussed did not release states from an obligation to seek precision and clarity in the concepts to be utilized; the representative of the Inter-American Juridical Committee pointed out that a declaration, although not binding, might recognize a status or right, and to that extent might have legal effect in that it was of some interpretive value. He went on to state that a declaration might give rise to a custom, a source recognized in international law.

The representative of the Inter-American Indian Institute indicated that any attempt to draft a declaration on the topic should take account of the process of recognition as well as that of rebuilding indigenous populations. He also indicated that states had the responsibility of harmonizing the concepts discussed herein with already-enshrined domestic concepts, and that only frank dialogue with indigenous representatives would be able to harmonize such concepts with the demands of those groups.

The representatives of indigenous populations also called upon governments to include in their domestic legislation the three concepts discussed in this section, that is, "peoples," "territory," and "self-determination," recognizing thereby the diversity of these communities.

Given the various opinions expressed, it was decided to maintain the formula "people/population" in the proposed declaration until the scope of each concept was defined. Some delegations also insisted on the importance of defining certain basic concepts to be used in developing the rest of the declaration. Satisfaction was also expressed that an opportunity had been provided to hear the indigenous representatives on topics as significant as those discussed in this section.

b. Section Two: Human rights

Several delegations proposed amendments to the second section of the proposed declaration. In particular, with respect to collective rights, there was feeling that it was advisable to include references to the right to the social, political, and economic organization and to recognition of the legal systems of those communities. However, in that connection some delegations expressed reservations in that this could be interpreted as recognition of a parallel legal system within a single state.

In reference to the right to recognition in law, it was felt that it would be necessary to specify what type of recognition was being discussed, whether international or recognition defined under the domestic law of each state.

The topic of rejection of assimilation also led to discussion among the delegations. In particular, it was suggested that specific reference be made to the protection of indigenous populations against the possibility of genocide.

In reference to special guarantees against discrimination, some delegations indicated that they had difficulty with language that imposed an obligation on the state to implement more guarantees that those already provided at constitutional level. Several delegations indicated that there was no reason for exclusive reference to gender- or age-based violence; rather reference should be made to all types of violence, which hindered or prevented the exercise of the rights of indigenous populations.

The general feeling was that this section dealt more with the rights of indigenous populations than with the obligations of the states, and that the declaration’s structure as such should be preserved and the necessary accommodations made in the rest of the articles. The chair suggested that this be borne in mind, and that the obligations of the states should be the subject of a specific chapter.

Representatives of indigenous populations, on the other hand, stated that the articles in this section should bear more directly on the obligations of the states. They also suggested that throughout the section, the phrase "and their members" should be added after the phrase "indigenous peoples." The National Congress of American Indians suggested a new wording of Article 2, on self-determination, taken from the draft declaration now being negotiated at the United Nations:/

"Indigenous peoples have the right to self-determination. They may freely determine their political status and pursue their economic, social, and cultural development by virtue of this right."

The National Congress of American Indians proposed the following wording for Article 2, paragraph 2:

"States shall therefore recognize the basic social, economic, political, and cultural rights of indigenous peoples, and in particular, the collective right to lands, territories, and resources, and the right of indigenous peoples to self-determination."

In that connection, some representatives of indigenous populations indicated that self-determination was a basic collective human right, perhaps the most important of such rights, that ensured, inter alia, the right to land and to the development of indigenous communities in accordance with their particular needs, within the general framework of the state. They indicated that many of the states present here had recognized the right to self-determination in other international fora, and they were now asking that the same be done within the framework of the OAS. However, they stated that there were many other collective rights, and drew attention to those already enshrined in several international instruments.

Mr. Juan León, indigenous representative of the Mayan people of Guatemala, suggested that the title of Article 4 be "Legal recognition of indigenous peoples" (which includes existence, identity, and law), which distinguishes between the right of an entity in law and its legal capacity. Mr. Margarito Ruiz of Mexico requested that reference to "traditions" be included in the article.

One of the representatives of indigenous populations, Mr. Héctor Huerta of Panama, proposed the following wording:

"States shall recognize the right of indigenous peoples in law in keeping with their traditional forms of representation or such legal norms as these peoples may develop. States shall adopt the necessary legislative measures for the recognition of this right."

The National Congress of American Indians also proposed replacing the present wording of Article 5 of the proposed declaration with the following:/

"Indigenous peoples have the collective and individual right not to be subjected to ethnocide or cultural genocide, including the right to prevention of and reparation for:

a. Any act whose purpose or effect is to deprive indigenous peoples of their integrity as unique peoples, or their cultural values, or their ethnic identity;

b. Any act whose purpose or effect is to deprive them of their territories or natural resources;

c. Any type of displacement whose purpose or effect is the violation or prejudice of any of their rights;

d. Any type of assimilation by or integration into other cultures or lifestyles imposed through legislative, administrative, or other measures;

e. Any type of propaganda directed against them."

Finally, regarding Article 6 of the proposed declaration, the National Congress of American Indians proposed replacing the phrase "special guarantees" with "special measures."

c. Section Three: Cultural Development

With regard to the "right to cultural integrity," some government delegations expressed doubts regarding the standard to be used with respect to the compensation referred to in the article on that subject and its assessment under international law, since this matter is not addressed in the international legal system. Some delegations also requested that the word "restitution" be deleted from the proposed declaration. As for restitution of property or heritage, the representative of the Inter-American Juridical Committee pointed out that it would be necessary to define the scope and parameters of such restitution. The representative of the Inter-American Commission on Human Rights pointed out that the concept of "heritage" (patrimonio) that had inspired Article VI of the proposed declaration did not include lands.

On the topic of education, several government delegations stressed its importance and some asked for consideration of the minimum standards established by the educational authorities to be included in the discussion of this matter. With respect to the assistance that would need to be provided by the states in this field, some delegations pointed out that such a requirement might be a heavy burden to place on them, given that they already provide financial assistance without distinguishing between the indigenous population and the rest of the population. The representative of the Inter-American Commission on Human Rights indicated that one of the intentions of the article was that, in the interest of fairness and nondiscrimination, the indigenous populations should also guarantee access to their schools for the population in general, above all in schools receiving state funding.

On the subject of "spiritual and religious freedom," some delegations suggested that the provisions governing this matter should be consistent with the United Nations International Covenant on Civil and Political Rights and other international legal instruments in force. However, several delegations had problems with the obligation to return sacred graves and relics in cases in which these had become property of the state.

Regarding "family relations and family ties," some government delegations were unhappy with establishing a parallel set of rules governing such matters as the family, marriage, filiation, etc. It was also pointed out that it was not advisable to issue a general declaration on the family as such. It would be better to restrict it to aspects to do with indigenous populations. A reference to the role of women in indigenous families would also be appropriate.

On "health and well-being," some government delegations said it would be best to look for a less specific wording consistent with constitutional provisions that regulate the health care professions in the different states. Other delegations said that, while it was advisable to preserve the autonomy of indigenous populations in this area, there should be guarantees that minimum sanitation and health safety standards set by the State are adhered to. One suggestion, in that respect, was to provide appropriate training for persons practicing traditional medicine. Freedom to opt was another term put forward for consideration in the proposed declaration. On this matter, the representative of the Inter-American Juridical Committee pointed out that the best thing would be to find a formula reconciling the effect of traditional customs and the overall legal framework.

With respect to the "right to environmental protection," the various delegations acknowledged the importance of the interaction between indigenous populations and their environment. They referred specifically to the use and exploitation of renewable natural resources by those populations, in circumstances in which the State’s exploitation of certain areas frequently did them harm. Delegates stated that indigenous populations had the right not only to be informed but also consulted regarding measures that could affect their environment. They also had the right to make full use of their environment and of the productive capacity generated by their lands, territories, and resources.

Some government delegations suggested including a reference to the illegal production of and trafficking in drugs. However, others pointed to the difficulty of distinguishing between, on the one hand, plants used for traditional purposes, which often can be used to produce illicit narcotics, and, on the other hand, the narcotics themselves. In short, it was a question of preventing the lands of indigenous populations from being used for the consumption, possession, and transport of illicit substances.

Finally, there was a request to place "lands/territories" in square brackets, pending a decision on how these terms should be used and defined in the proposed declaration.

With respect to this section, the National Congress of American Indians asked that all articles contain the phrase "Indigenous peoples and individuals have the right…."/

Other representatives of indigenous populations indicated that culture was the original foundation of indigenous peoples and that the state should protect the development of that culture by implementing projects and ad hoc programs. The importance of that culture lies in the fact that it reflects a view of the world that has guided and directed those communities in conducting their own politics and establishing separate economies and legal systems based on the search for true and effective conciliation. Other representatives pointed out that efforts by the state to merely prevent discrimination based on culture is not sufficient, and that mechanisms to promote these cultures and their practices should be put in place.

In this regard, the representative of Altepetl Nahuas, A.C./Seminario Indígena (Native Mexican) proposed that the following language be included in the proposed declaration:

"The states shall adopt the measures necessary to prevent discrimination, ethnocide, and cultural genocide in indigenous populations."

The Indian Law Resource Center proposed that paragraph 2 of Article 7 read as follows:

"Indigenous peoples and individuals have the right to preserve and practice their indigenous language, philosophy, and outlook as a necessary expression of their distinct culture. The states shall take appropriate measures to protect the exercise of this right."

In regard to restitution of lands (Article 7, paragraph 2), a representative of indigenous populations stated that when such restitution is not possible, the assignment of lands of equal value would be preferable to monetary) compensation. The representative cited the General Recommendation of the Committee on the Elimination of Racial Discrimination established under the related United Nations convention.

Other representatives of indigenous populations stated that mention should be made of both the tangible and intangible intellectual rights of indigenous populations.

In this regard, the Indian Law Resource Center proposed that the following language be used:

"Where there is a strong indigenous presence, the states shall take measures to ensure that broadcast radio and television programs are broadcast in the appropriate indigenous languages. The state shall also support the creation of indigenous radio stations and other media."

In regard to paragraph 3, the National Law Resource Center proposed that the words "shall endeavor" be replaced by "shall take measures," as had been done in the other paragraphs.

In addition, it was stated that language was the vehicle for the transmission of indigenous culture, which has allowed the development of particular systems that have survived over time. In this regard, the State must take steps to adopt and protect indigenous languages and to promote their development, thus guaranteeing that children will be able to write and speak their own languages. The States were also asked to open up new spaces in the mass media to promote those languages.

In connection with this, the National Congress of American Indians proposed the following alternative wording for Article 8:/

"Indigenous peoples have the right to revitalize, use, develop, and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems, and literature, and to designate and retain their own names for communities, places, and persons."

The Indian Law Resource Center proposed the following text for the first and second paragraphs:

"Indigenous peoples and individuals have the right to preserve and practice their indigenous language, philosophy, and outlook as a necessary expression of their distinct culture. The states shall take appropriate measures to protect the exercise of this right."

"Where there is a strong indigenous presence, the states shall take measures to ensure that broadcast radio and television programs are broadcast in the appropriate indigenous languages. The state shall also support the creation of indigenous radio stations and other media."

The indigenous populations’ representatives also underscored the need to promote educational reform processes, which would involve major transformations within a framework of pluralism, equality, and solidarity. Emphasis was also placed on the need to guarantee the right of indigenous populations to intercultural education. Some representatives requested that the draft declaration assure members of indigenous populations equal access to education and that schools be made available in indigenous areas so that family ties need not harmed in the pursuit of higher education. It was also stated that education has been an instrument of alienation among indigenous peoples, but that it also can be a useful tool for communities in their pursuit of a better life and development.

Other representatives of indigenous populations pointed out that institutions of higher education should reject any research that views indigenous peoples as objects, cease any discriminatory practices and policies in enrollment procedures, and put an end to the exclusion of indigenous cultures from the classroom.

Religious and spiritual freedom was described as being a fundamental human right. Recognition was sought for the importance of the individuality and specificity of these freedoms and for the right to practice them in both public and private. The historical value of the temples and ceremonial centers that form part of the cultural, historical, and spiritual heritage of indigenous populations was stressed; consideration was sought for the right to participate in their management and conservation; and emphasis was placed on the need to regulate access to those centers and to guarantee the free manifestation of spiritual expressions by indigenous populations. A request was also made for the proposed declaration to include a reference to the restitution of those religious centers that have been taken away from indigenous populations.

In connection with this, the National Congress for American Indians proposed the following alternative wording for Article 10:/

"Indigenous peoples and individuals have the right to maintain and protect their cultural and religious properties including sacred sites, relics, graves and the human remains and articles found within graves. This includes the right to restitution of religious and cultural property taken without their free and informed consent or in violation of their laws, traditions and customs. In collaboration with the indigenous peoples concerned, the states shall adopt effective measures to ensure that such properties are preserved, respected and protected. Where appropriated by state and private institutions or individuals without the consent of the peoples concerned, they shall be returned."

The Indian law Resource Center made the following proposal for paragraph 1:

"Indigenous peoples and individuals have the right to freedom of thought, conscience and religion; this right includes freedom to change one’s religion or belief, and freedom in public or private, to manifest their religion or belief in teaching, practice, worship and observance."

It also proposed that in paragraph 2 the words "forcibly convert" be replaced by the words "to convert indigenous peoples without their free and informed consent".

And for paragraph 3 it proposed the following text:

"Indigenous peoples and individuals have the right to maintain and protect their cultural and religious properties including sacred sites, relics, graves and the human remains and articles found within graves. This includes the right to restitution of religious and cultural property taken without their free and informed consent or in violation of their laws, traditions and customs. In collaboration with the indigenous peoples concerned, the states shall adopt effective measures to ensure that such properties are preserved, respected and protected. Where appropriated by state institutions, they shall be returned."

In regard to family relationships and ties, a proposal was made to include a declaration recognizing the rights of indigenous women. It would mention, among others, reproductive rights and the right to a bilingual, bicultural education, and in general it would introduce a gender perspective into the draft declaration.

The Indian Law Resource Center proposed the following language for paragraph 2:

"In all actions concerning children, the state has a duty to respect the responsibilities, rights, and duties of parents, or where applicable, the members of the extended family or community as provided for by local customs".

Regarding health matters, the indigenous populations’ representatives requested that a mechanism be implemented to protect intellectual property rights to indigenous medicine. The representatives of indigenous populations stressed the importance of traditional medicine and requested that mechanisms to safeguard it and provide access to it be strengthened in the best possible way. In particular, they proposed relocating the part of the proposed declaration dealing with intellectual property to the section on cultural development.

With regard to the environment, the indigenous populations’ representatives underscored their right to participate in the use and administration of their resources and lands and their need to be consulted prior to the initiation of any resource use project that could affect their communities. Some representatives pointed out that consultation in itself is not enough if not undertaken before anything is actually done. Providing advance information is a way to ensure that the right of indigenous peoples to participate in decision making is not limited. Mention was also made of the importance of recognizing the technology used by indigenous populations in their productive processes and it was requested that indigenous lands not be unilaterally declared protected areas, but that consultations be carried out and the agreement of the peoples concerned be obtained before such a change is made.

The National Congress of American Indians proposed amending Article 13, paragraph 6 of the proposed declaration by replacing the phrase "in contravention of legal provisions" with "unless the free and informed consent of the affected peoples has been obtained."

It also proposed changing paragraph 7 of the same article to read as follows:/

"When the state is giving consideration to establishing a protected area on or near to an indigenous territory, legally recognized or under claim, the state shall obtain the free and informed consent of the affected indigenous peoples prior to authorizing or implementing such a proposal. Protected areas shall not be subject to natural resource development without the free and informed consent of the affected indigenous peoples.

Indigenous peoples have the right to declare, wholly or in part, their territories as indigenous-owned and managed protected areas and the state shall recognize and respect such decision."

In general terms vis-à-vis this section, the indigenous populations’ representatives requested that consideration be given to reinstating the original language of the proposed declaration as submitted by the Inter-American Commission on Human Rights.

The representatives of different bodies and agencies of the Inter-American system also expressed their opinions on these issues. The representative of the Inter-American Indian Institute stressed that it must be made clear that the specific rights guaranteed in this proposed declaration do not restrict the rights that the members of indigenous populations have as citizens of a given State. He also emphasized that there was much variance among the conditions faced by different indigenous populations across the hemisphere and that this diversity should be taken into particular consideration as regards cultural development. A declaration of such a general nature as the one under study, he stated, must be able to adapt to the specific characteristics of each community. In turn, the representative of the Inter-American Commission on Human Rights emphasized a series of articles that, in his opinion, had to be taken into careful consideration by the member states, particularly with regard to restitution. The representative of the Inter-American Juridical Committee noted that it would be necessary to clarify whether or not the rules of international law would apply to the confiscations described in the proposed declaration.

d. Section Four: Organizational and Political Rights

With regard to this section and, in particular, to the "right to self government," several delegations expressed doubts regarding the use of terms such as "political status," "self government," and "autonomy," on account of the implications they would have at both the domestic and international levels. Some delegations stated that they recognized indigenous populations’ right to self determination, provided that the substance of that right was negotiated with the State in question. In any event, with regard to this section, emphasis was placed on the need to avoid losing sight of the concept of autonomy, which underscored the need for further work on the articles containing definitions.

In connection with "indigenous law," it was once again stated that it represents a juridical regime parallel to that of the state; this was not acceptable to some delegations. It was also remarked that observing indigenous law and custom could lead to imbalances from the viewpoint of a state’s domestic laws. Other government delegations accepted the idea of indigenous law provided that it did not conflict with the legal order of the State and was framed by respect for human rights.

Regarding the "national incorporation of indigenous legal and organizational systems," some government delegations noted that the thrust of this article should be to guarantee full access to the jurisdiction of the state by indigenous populations and that it should be enshrined in such terms in the corresponding text.

In connection with this, some representatives of indigenous populations pointed out that the States must take into consideration, on a priority basis, the collective rights of indigenous populations, promoting their active participation in society as a whole and thus guaranteeing the individual rights of those communities’ members. The proposed declaration should set forth respect for indigenous institutions and guarantee their different forms of autonomy and self government, it was said, but steps had to be taken to ensure that the process of the national incorporation of indigenous legal and organizational systems did not imply any arbitrary or forced assimilation whatsoever.

Some indigenous populations’ representatives also referred to the rights of self-determination and self-government in terms similar to those used in earlier comments set forth in the second section of this report.

Regarding specific proposals for modifying articles of the proposed declaration, the National Congress of American Indians, the Amerindian Peoples Association of Guyana and the Toledo Maya Cultural Council, and the Upper Sioux Community by Poi Co proposed changing the first phrase of paragraph 1 of Article 14 to read, "Indigenous peoples and individuals."

They proposed the following language for paragraph 2:

"Indigenous peoples and individuals have the right to the use of their sacred and ceremonial areas as well as the right to establish and maintain without any discrimination, free and peaceful contacts with other indigenous peoples and individuals that live in the territories of neighboring states or across state borders."

For Article 15, paragraph 1, they proposed the following text:

"Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, spiritual and cultural development. As a specific form of exercising their right to self-determination, have the right to autonomy and self-government with regard to inter alia culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, the environment and entry by non-members; and to determine ways and means for financing these autonomous functions."

In Article 16, they proposed adding the following paragraph:

"The official decisions, rulings and actions of indigenous institutions shall be fully recognized, honored and enforced by the institutions of the state."

Finally, regarding Article 17, they noted that paragraph 2 should also ensure that "no decisions directly relating to their rights and interests are taken without their free and informed consent."

One delegation read out a declaration in which it lamented the fact that in the course of the Meeting it had been stated that the laws of its country did not treat indigenous populations in the same way as the rest of the citizens of that State. The delegation cited a series of both constitutional and regulatory provisions illustrating that all citizens were treated equally.

e. Section Five: Social, Economic, and Property Rights

Some government delegations focused their attention on analyzing Article 18 of the proposed declaration. In general, they expressed concerns regarding the scope of the article as a whole, particularly as regards domestic law and regarding the historical moment to be taken into account for the purposes of restitution, and they asked the representative of the Inter-American Commission on Human Rights to explain its scope. The representative explained that the antecedents of this article were to be found in different provisions of OAS member states’ domestic laws and that it covered those lands that traditionally belonged to indigenous populations and were currently in dispute.

On this topic, several representatives of indigenous populations pointed out that the rights of indigenous people to their lands are reflected in various international legal instruments and that full recognition of those rights should be built into the proposed declaration now being studied, bearing in mind that many indigenous populations have lived on the lands they currently possess from times immemorial, and even since before the formation of nation states.

This being so, it was necessary, they said, to include a reference to the right to self-development, which is a corollary of the right to self-determination.

With respect to that, Mr. Abelardo Torres of Mexico, a representative of indigenous populations, proposed that every time the word "territory" is mentioned in section five of the proposed declaration it should be accompanied by the phrase "collective ownership". He also suggested including the right to dual nationality in Article 19, and the right to integral self-development of the indigenous populations in Article 21.

Mr. Marcial Arias, a representative of indigenous populations from Panama, suggested that paragraph 6 of Article 18 be deleted to avoid indigenous populations from being transferred under the pretext of the public interest, but in reality due to other motives on the part of the State. As for the intellectual property of traditional know-how, he stated that the proposed declaration lacked a specific reference designed to protect it and he cited, as an example, the Agreement on Biological Diversity.

For his part, The representative of the Assembly of First Nations referred specifically to Article 18 of the proposed declaration on traditional forms of property ownership and cultural survival: the rights to land and territories. He said the right to land should include the whole territory, including the soil, resources, and water. He said that those rights to land constituted the fundamental feature that defined indigenous peoples. He also suggested including some paragraph on settlement of disputes through the creation of independent mechanisms, since indigenous peoples were normally at a disadvantage when it came to defending their rights and legal titles.

The National Congress of American Indians, the Upper Sioux Community, the American Peoples Association of Guyana, and the Toledo Maya Cultural Council also proposed amendments to a series of articles, as follows:

Article 18, paragraph 4: (insert after the phrase "protection of their rights with respect to")

"Their lands, territories and natural resources [delete ‘on their lands’] including the ability to use, develop, manage and conserve such lands, territories and resources; and with respect to traditional uses of their lands, territories and resources such as subsistence."

Article 18, paragraph 5:

"Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands. Territories and other resources, including the right to require that states obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources, compensation shall be provided for any such activities and measures taken to mitigate adverse environmental, economic, social, cultural or spiritual impact."

Article 18, paragraph 6:

"Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free and informed consent of the indigenous people concerned and after agreement on just and fair compensation and, where possible, with the option of return."

Article 18, paragraph 7:

"They shall be provided with lands of equal value and quality, and if this is not possible, the affected people (s) has the right to compensation on a basis not less favorable tan the standard of International Law."

Finally, the representative of the Indian Law Resource Center again stressed the advisability of referring in all articles to "indigenous peoples and individuals." She also indicated that there ought to be a reference to those lands to which indigenous populations hold a current title, not only to those they historically possess. She reemphasized that reference should be made not only to mineral resources in general but to all resources below and above ground.

Speaking of the forced relocation of indigenous populations, she pointed to the need for a clearer standard than mere public interest before these communities are relocated without their prior consent. Also, in connection with Article 19, she suggested referring to equal opportunity in the area of labor, gender equality, and equal treatment in terms of remuneration, medical and social assistance, all social security benefits, and all other labor benefits stipulated by international law.

f. Section Six: General Provisions

At the Chair’s request, the director of the General Secretariat’s Department of International Law enumerated a series of concerns regarding the terms used in this section, in order to preserve consistency both with the terminology used in other inter-American instruments and with the nature of the proposed instrument.

He noted that in Article 22, the reference to the word "treaties" meant, against the context of the OAS Charter, agreements entered into between States, among States and international organizations, or between international organizations.

He said that Article 27 was more appropriate to a convention than to a declaration.

In turn, the representative of the Inter-American Juridical Committee proposed replacing the word "treaty" with another that would reflect any internal agreement, irrespective of its appellation.

Some government delegations stated that this section evoked an obligatory instrument and did not reflect the nature of a declaration, and they suggested eliminating it in its entirety. Other delegations stated that in their opinions, Articles 22, 26, and 27 did not belong in an instrument of this kind, since the issues covered by the declaration are to be internally regulated by each member state. Nevertheless, one delegation expressed its wish to preserve Article 22.

In general, the representatives of indigenous populations said that the treaties referred to in article 22 of the draft declaration are of an international nature, and for this reason they suggested that this article be maintained and strengthened.

Specifically, Mr. Darwin Hall, a representative of indigenous populations, proposed the following formula regarding the provision on treaties, drawn from the draft declaration on indigenous populations being negotiated at the United Nations.

"Indigenous peoples have the right to the recognition, observance, and enforcement of treaties, agreements, and other constructive arrangements that may have been concluded with states or their successors, according to their spirit and original intent; and to have states honor and respect such treaties, agreements, and arrangements. [Conflicts and disputes which cannot otherwise be settled shall be submitted to the international competent bodies by all the parties involved."

With respect to this section, the representative of the Assembly of First Nations emphasized that agreements with indigenous populations should be observed, particularly given their disadvantages vis-a-vis the nation-state. He also suggested including some reference to historical agreements concluded by indigenous populations and based on their oral traditions.

Some specific proposals were put forward on behalf of the National Congress of American Indians, the Upper Sioux Community, the American Peoples Association of Guyana, and the Toledo Maya Cultural Council, especially that Article 27 include a reference to the undertaking by OAS member states to promote respect and application of the rights established in this proposed declaration.

IV. FINAL CONSIDERATIONS

Before closing the Working Group meeting, the Chair circulated the report that is to be presented to the Permanent Council for consideration. It contains a summary of the discussions and the proposals put forth over the course of the week. He also thanked the government delegations and the representatives of indigenous populations for their participation, and indicated that the Permanent Council would decide upon the future course of action of the Working Group. One delegation proposed that meetings be held in the interim for study of the proposed Declaration.

Mr. Osvaldo Kreimer of the Inter-American Commission on Human Rights expressed the Commission's appreciation for the efforts being made to analyze the proposed Declaration.

A number of government delegations said they were gratified that representatives of indigenous populations had participated and hoped this practice would be continued.

The representatives of indigenous populations thanked the Working Group for the opportunity to present their views and proposals and expressed their willingness to contribute to future OAS efforts in this area.

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