The United Nations Declaration on the Rights of Indigenous Peoples: Support for the 3rd UN Seminar on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Peoples

United Nations Human Rights Council

Expert Mechanism on the Rights of Indigenous Peoples, 3rd session

July 12 – 16, 2010, Geneva, Switzerland

Agenda Item 4

The United Nations Declaration on the Rights of Indigenous Peoples: Support for the 3rd UN Seminar on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Peoples

Global Indigenous Peoples’ Caucus Statement presented by

Raja Devasish Roy

I am Devasish Roy, from the Chittagong Hill Tracts, Bangladesh a member-designate to the UNPFii for its term starting in 2011.

Congratulations to you, Mr. Chairperson, on your assumption of chairpersonship. Warm greetings from the Global Indigenous Peoples’ caucus.

The members of the Global Indigenous Peoples Caucus participating in the 3rd session of the UN Expert Mechanism on the Rights of Indigenous Peoples, representing all regions, note with appreciation the report presented here on the 2nd UN Seminar on Treaties Agreements and Other Constructive Arrangements held in November 2006 in the territories of the Maskwacis Cree in Alberta Canada.

In particular we want to express our support for its recommendation to hold to a 3rd United Nations Seminar on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Peoples, with the support and cooperation of the Office of the High Commissioner on Human Rights. We note with appreciation the invitation of the Maori of Aotearoa (New Zealand) in this regard. In this way, important advances can continue to be made regarding implementation, consideration of developments and good practices, and implications of the adoption of the UN Declaration on the Rights of Indigenous Peoples by the UN General Assembly. This includes the growing endorsement of the Declaration, including by UN member states that had voted against, or had abstained from voting, during the adoption of the Declaration by the General Assembly.

The Global Indigenous Peoples Caucus takes this opportunity to affirm its support for the recommendations contained in the final report of the UN Study on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Populations [E/CN.4/Sub. 2/1999/20] by Special Rapporteur Dr. Miguel Alfonso Martinez. We look forward to continued work to advance their implementation in partnership with States and the UN system.

However, we also take this opportunity to state that we do not necessarily agree with certain provisions contained in the body of this report under the category of “Some Key Points of Departure”, in which the validity of the claims of ‘indigenousness’ by peoples within Asia and Africa were questioned. If I just add now, in my personal capacity, that this matter was raised by indigenous participants from Asia, Africa, Arctic, North America and other regions at the Working Group on Indigenous Populations in 1998 and at the first expert seminar on the subject in 2003.

I return, Mr. Chairperson to the statement of behalf of the caucus:

We again affirm the validity, soundness and relevance of the recommendations contained in this report. However, we wish to put on record the right to self-identify of the Indigenous Peoples of Asia, Africa, Eastern Europe and all other regions. Equal application of the rights of indigenous peoples of all regions, including Indigenous Peoples in Asia and Africa, is vital to take forward the process of implementing Treaties, Agreements and Other Constructive Arrangements on a global level.

Important advances have taken place in the international arena since the completion of this report including the adoption of the UN Declaration on the Rights of Indigenous Peoples and the growing participation of indigenous peoples’ delegations, from Africa, Asia and other regions of the world in the UN Permanent Forum on Indigenous Issues, the Expert Mechanism on the Rights of Indigenous Peoples and in other UN and international fora including as expert members.

Mr Chairperson,

The development of human rights law is progressive. This is an underlying principle of international human rights law, as is the universal application of such rights without any form of discrimination.

The Global Indigenous Peoples Caucus affirms the importance of the continued work on the matter of Treaties, Agreements and Other Constructive Arrangements for all Indigenous Peoples as well as for States and the UN System, based on the aforesaid Treaty Study but also looking forward in the light of new developments and understandings from that same perspective of progressive development of international human rights law.

We anticipate that the 3rd Seminar will be an important opportunity for all of us to advance this work. We look forward to discussing the provisions of the UN Declaration on the Rights of Indigenous Peoples pertaining to implementation of Treaties, Agreements and other Constructive Arrangements. Also of particular interest for Indigenous Peoples of all regions will be discussions on the development of frameworks for negotiation, redress, restitution and conflict resolution, based on the affirmation in the preamble of the Indigenous Peoples’ Declaration that [I QUOTE]“treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States” [UNQUOTE].

Thank you Mr. Chairman

Indigenous peoples and the right to participate in decision-making

HUMAN RIGHTS COUNCIL

EXPERT MECHANISM ON THE RIGHTS OF INDIGENOUS PEOPLES

UNITED NATIONS OFFICE, GENEVA, THIRD SESSION

12-16 July, 2010

Agenda Item 3:

Study on indigenous peoples and the right to participate in decision-making

Statement by Devasish Roy, Chakma Chief (Chittagong Hill Tracts, Bangladesh: devasish59@yahoo. com) on behalf of the

A s i a I n d i g e n o u s P e o p l e s C a u c u s

Mr. Chairperson,

Congratulations to you on your chairpersonship and warm greetings to all. Let me start by thanking the members of the Expert Mechanism, particularly the lead authors, EMRIP members John B. Henriksen and Jannie Lasimbang, for their well-researched, analytical and substantive work in the Progress Report (A/HRC/EMRIP/ 2010/2). We agree with the contents of the report, which seeks promote the decision-making rights of indigenous peoples. We also commend the work of the Secretariat (A/HRC/EMRIP/ 2010/3) particularly where they draw our attention to the general comments and recommendations adopted by several UN treaty bodies with regard to the right of indigenous peoples in decision-making.

Through this intervention, we would like to draw your attention to four specific areas of indigenous peoples’ role in decision-making, some of which have been mentioned in the concerned reports, and in Special Rapporteur James Anaya’s address to the Forum yesterday, and in several of his other engagements and communications. These are indigenous peoples’ role in: (i) national constitution- making; (ii) the electoral process; (iii) through their own traditional and other institutions and representatives; and (iv) state executive support to these roles. We reiterate that these rights emanate from the right to self-determination of peoples, which right the UN Declaration on the Rights of Indigenous Peoples clarifies beyond any that, that it applies equally to indigenous peoples, whether or not the state in which the indigenous peoples live ratified the two human rights covenants of 1966 (the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) or not.

INDIGENOUS ROLE IN CONSTITUTION- MAKING

One distinguishing feature of indigenous peoples worldwide is the historical process of denial of their role in national constitution- making (and to a lesser degree, in other law-making and policy-making processes). Apart from some notable exceptions in Latin America, and recently, in Nepal, most national constitutions the world over either contain no provisions proposed by indigenous peoples, and if they do contain some, these largely concern relatively mundane matters. This is a continuous and continuing challenge for indigenous peoples and governments. If the modern nation state is compared to a house, then the concerned national constitution could be regarded as the architectural plan. Now if we are to add new rooms to such a house, to accommodate us, we can only do that if the existing plan can accommodate the new rooms. Otherwise, we will be only moving the furniture around or have to sleep in the verandah. Thus, it is vital that indigenous peoples are provided fair and substantive opportunity to help re-write the national constitutions in an inclusive manner, taking the UN Declaration on the Rights of Indigenous Peoples as a basis with guidance from other international human rights norms and standards. Only then will the playing field be a little more level and democracy and participation more meaningful.

INDIGENOUS PEOPLES’ ROLE IN THE ELECTORAL PROCESS

Despite some advances made in indigenous peoples’ role in the electoral process in several countries, there are an equal or larger number of situations where indigenous peoples’ role in the political process has become even more marginal than before. Even in the situations where indigenous peoples’ populations constitute a substantive part of an electoral constituency (which is not the case for most indigenous peoples), majoritarian orientations of political parties’ priorities and the domination of money, muscle and numbers vitiate against indigenous persons being elected. Even where they are elected, they are often subjected to pressure from party hierarchies and prevented from playing a substantive role in the decision-making process. This also happens in countries with large indigenous populations, including in Latin America, and in South and Southeast Asia. It is therefore crucial that safeguards for indigenous participation and reserved seats in elective institutions are introduced or retained and strengthened (such as those as in Aotoroa-New Zealand and Northeast India).

INDIGENOUS PEOPLES’ DECISION-MAKING IN MAINSTREAM POLITICAL AND DEVELOPMENTAL PROCESSES THROUGH THEIR OWN TRADITIONAL AND OTHER INSTITUTIONS AND REPRESENTATIVES

In the countries where indigenous peoples’ traditional and other institutions have been and continue to be de-recognized by the state, their situation of marginality in decision-making is even sharper (such as in several parts of South, Southeast and East Asia). It is therefore vital that traditional and other non-elected indigenous structures be formally recognized in mainstream local and national decision-making processes in addition to providing appropriate avenues for electoral representation bearing in mind the difficulties and disadvantages faced by indigenous peoples in the electoral process.

STATE SUPPORT FOR DECISION-MAKING IN HYBRID OR OTHER STATE-INDIGENOUS DECISION-MAKING INSTITUTIONS AND PROCESSES

While it is vital that indigenous peoples’ internal decision-making processes are protected, strengthened and fostered, it is equally vital to ensure that indigenous leaders’ and other representatives’ role in decision-making processes have the full and formal support of the legislative, judicial and executive arms of the governments of the states in which they live. This should include support to (i) the solely indigenous-membered institutions, (ii) indigenous and non-indigenous “hyrbrid” institutions and (iii) non-indigenous membered state institutions that provide substantive consultative roles to indigenous peoples that give indigenous peoples a real choice to provide or withhold consent, adhering to the right and principle of Free, Prior and Informed Consent.

Thank you, Chairperson.