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During the eleventh session of the United Nations Working Group on Indigenous Peoples, which took place in Geneva during July 1993, serious arguments emerged concerning whether the Draft Declaration on Rights of Indigenous Peoples was at that point adequately developed and mature enough to be considered a final piece of work. Due to the fact that the document which emerged from the meeting had not been referred back to indigenous communities around the world, many indigenous representatives argued that it was premature to accept it and turn it over for approval to the Subcommission on Prevention of Discrimination and Protection of Minorities (hereinafter referred to as the Subcommission). They insisted that the Declaration could not be presumed to represent indigenous peoples without a thorough referral and consultation process. In the end, the dispute was never settled in any final way, and the legitimacy of the Declaration on Rights of Indigenous Peoples (and of the Working Group itself) was left in limbo.
The history of consultative process in the Working Group has been consistently uneasy since the inception of the organization. The Working Group of five non-indigenous "experts" on indigenous affairs commenced its research mission in 1982, but did not begin drafting the Declaration until 1988. Between 1985 amd 1989, on the other hand, preparatory meetings of indigenous peoples were convened each year in the week prior to the Working Group meetings. At those preparatory meetings, indigenous peoples themselves were beginning to draft their own set of principles, and by 1988, 26 articles had been agreed upon as the basis of a declaration of rights. That declaration clearly derived directly from indigenous communities around the world, not just from the delegates who were in Geneva. The indigenous peoples wanted their declaration to be the continuing focal point for discussion within the Working Group. The document which actually took form never sufficiently reflected their ideals in either form or substance.
At the fifth session of the Working Group, in 1987, indigenous people submitted their collection of principles to the panel of experts for its consideration as a draft declaration. The Working Group responded by initiating its own drafting process, with approval from the Human Rights Commission. The first Draft Declaration produced by the Working Group hardly corresponded at all to the objectives delineated in the indigenous peoples' document; indigenous people severely criticized it for equivocation on the issues of self-determination, collective rights, recognition of territories, and control of surface and sub-surface resources. These had been central and unambiguous points in the indigenous declaration. Ever since the draft of 1987, these same issues have remained in dispute between the Working Group and the indigenous representatives. The issue of consultation, however, has become an even more central point of contention.
Following the first full reading of the Working Group's Draft Declaration, which took place during the tenth session in 1992, the Subcommission issued Resolution 1992/93 of 27 August, which stated the objective of finalizing the document during the eleventh session (1993). The resolution also endorsed the Working Group's plan for completing the second reading of the draft at the 1993 session and then submitting the document back to the Subcommission for approval. The resolution then recommended that the Chairperson-Rappporteur of the Working Group, Mme. Erica-Irene Daes, "be entrusted with the task of further elaborating" the Draft Declaration (as it emerged from the tenth session), and then circulating her "elaborated" version among the other members of the Working Group for their comments and suggestions, and then transmitting "the revised and reorganized text to Governments, indigenous peoples, and intergovernmental and non-governmental organizations well in advance of the eleventh session of the Working Group" (emphasis added). This objective of having consultation with indigenous peoples well in advance of the eleventh session was reemphasized in a subsequent document (Resolution 1993/31) of the Human Rights Commission, adopted on 5 March 1993. Clearly, the idea has been well established that indigenous peoples should be consulted, with sufficient time for comment, concerning the contents of evolving legal documents which affect their lives.
Without the knowledge or approval of many indigenous people or other members of the Working Group, however, the Chair-Rapporteur issued a completely distinct declaration (UN Doc. E/CN.4/Sub.2/1993/26), on 8 June 1993. When most indigenous people arrived at the Palace of Nations on the first day of the eleventh session, they were prepared to discuss the draft which had come out of the tenth session, not one independently produced by the Chair. They objected to the fact that the new draft had not been distributed well in advance of the meeting, in conformity with the resolutions of the Subcommission and the Human Rights Commission. The belated distribution had not been very widespread, either, as only a select few individuals and organizations had received the document before the Working Group convened.
The draft, which was made available only in English and Spanish, contained significant changes from the document that came out of the tenth session. More than just a simple rephrasing of words, there were major amendments of content and reordering of paragraphs. These changes did not result from the involvement of indigenous peoples who participated in the tenth session (as alleged by the Chair); careful analysis of the amendments proved that they were the work of state governments instead. For example, the first article which proclaimed the right of indigenous peoples to self-determination was changed in content and reordered as the third article of the new document. The place of individual rights of indigenous peoples was reordered to precede collective rights. The provision concerning treaties was completely transformed and diminished in its meaning. In some cases, whole paragraphs had been redrafted, distorting their original implications.
Due in no small part to the vigorous protests registered on account of these changes, the Chair adjourned the first day's session without any discussion of the new draft. For the next two days, little could be accomplished. For most of that time, indigenous peoples met (with full interpretation services provided by the UN) to review the draft, while the members of the Working Group met behind closed doors to revise it once more. On the fourth day (Thursday), the Working Group submitted another new draft, this one entitled "Conference Room Paper 4" (UN Doc. E/CN.4/Sub.2/AC.4/1993/CRD4), which was a revision of the Chair's document of 8 June and not made available in Spanish until late that afternoon.
Fourth World Bulletin • December 1993
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