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Nettheim, Garth; Simpson, Tony --- "The United Nations Working Group on Indigenous Populations (8th Session)" [1991] AboriginalLawB 9; (1991) 1(48) Aboriginal Law Bulletin 14

The United Nations Working Group on Indigenous Populations (8th Session)

by Tony Simpson

In July 1990, the United Nations Working Group on Indigenous Populations met for its 8th Session in Geneva. Australian Aboriginal groups again played a significant role in the Working Group's activities. The Australian Aboriginal representatives, despite the wide range of organisations represented, made a number of joint statements which strengthened their impact. The extent to which the representatives worked together was a matter of considerable positive comment.

Ms Erica Irene Daes, the Chairperson Rapporteur, expressed her gratitude to the Minister for Aboriginal Affairs, Mr Robert Tickner, "for his active participation and positive contribution to the work of the Working Group." In the opening session, Daes told the Working Group and all of those assembled that:

"We are meeting at an exciting time in world history. Dramatic events and radical political and socio-economic change are taking place all around us and many of them are of major significance to human rights and fundamental freedoms. Out of a long list of interesting developments, one can mention increased respect for the will of the people, political willingness to confrontand solve complicated and sensitive problems, and a general easing of tensions between and among states and peoples. In a few, but still very few, instances we have received information about positive actions taken on behalf of indigenous concerns."

The Drafting Process

For the first five days of the meeting the meeting split up into three informal drafting groups. The Groups covered various provisions of the Draft Universal Declaration on the Rights of Indigenous Peoples including the questions of land rights resources economic activities political , rights, self-determination and autonomy.

The first week's proceedings were conducted only in English. This meant that many indigenous people were unable to participate. The majority of those excluded were Spanish speakers. The strong protest registered by the bulk of participants, including those from Australia, sent a signal to the UN hierarchy so that such a mistake will not be repeated.

Another problem was the lack of participation by government observers, although Australia and to a lesser extent Norway, New Zealand and Canada, participated.


Results of the drafting groups were, from the perspectives of many indigenous representatives, observers, their advisers and supporters, quite positive. For instance, in the report of group I, a new preambular paragraph to the Draft Declaration was proposed, opening in the following terms:

"Convinced that the right of indigenous peoples to self - determination includes their right freely to determine their present and future relationships with the political, economic and social life of States..."

Paragraph 12, was also strengthened to read:

"The right to ownership, possession and use of the lands and other territories and resources traditionally occupied or otherwise used by them. Said lands and other territories and resources may only be used by other parties with free and genuine consent of the indigenous people concerned, as expressed through their own institutions, in accordance with their traditions, and as witnessed by means of a treaty, agreement or other type of mutually accepted legally binding instrument. "

The following inclusion to the first operative paragraph was suggested by group II:

"Indigenous peoples have the right to self-determination, by virtue of which they may freely determine their political status, pursue their own economic social, religious and cultural development, and determine their own institutions"

The concept of self-determination and political control forms the basis of the other revisions adopted by group.II.

Similarly the report by group III chaired by Erica Irene Daes strengthened the previous text.

Future Prospects

The long term significance of these proposed amendments remains to be seen. It must be kept in mind that governments will eventually determine the content and language of the Declaration. However, some of the strong language of indigenous demands has now been formally injected into the process. It will be the task of future delegations of indigenous representatives to defend and consolidate the advances made at this Working Group meeting.

Many important and informative statements were made in relation to the Mohawk situation in Canada, environmental issues, treaty issues, and the rejection of ILO Convention No 169. However, the following two developments were the most noteworthy.

(Full copies of Tony Simpson's reports are available.)

Ownership and Control of Cultural Property

by Garth Nettheim

The question of return of skeletal remains was highlighted throughout the session of the Working Group. In recognition of this, the report noted that throughout the world skeletal remains, burial artifacts, and other cultural objects and properties are kept in museums, private collections and universities. Urgent requests for the continued and speedy repatriation of these remains were made. Robert Tickner informed the Working Group of an official agreement aimed at the development of a national position and strategy for the return of significant cultural material to the Aboriginal peoples of Australia, in particular skeletal remains from overseas collections.

In response to the concerns raised at. the Working Group, its parent body, the Sub-Committee on Prevention of Discrimination and Protection of Minorities adopted a hard-hitting resolution calling for the return of Indigenous cultural property. The Sub-committee was

"Deeply concerned that the denial to Indigenous peoples of the ownership and control of those items, causes them considerable anguish, undermines revitalisation and strengthening of their culture and traditions and interferes with the pursuit of their political, economic, social, religious and cultural development in conditions of freedom and dignity".

Working Towards a Dialogue

Working Group members, Indigenous representatives and Government observers all recognised the need for more extensive dialogue not only within the Working Group but between sessions as well. The Sub commission;

"Encourages governments and Indigenous peoples to meet together at the national and regional levels, with the aim of seeking understanding and agreement on the principles which are contained in the Draft Declaration".

It is anticipated that the Australian Government will facilitate effective discussions in relation to the draft declaration early in 1991, in keeping with their strong statements in Geneva.

United Nations Seeks Indigenous Input

The UN's Centre for Human Rights has sought comments on the proposed revisions to the Working Group on Indigenous Populations' Draft Universal Declaration of Indigenous Rights - if possible by 30 January 1991 (!).

It also seeks information for submissions by 30 April 1991, on the Working Groups' study on Treaties, agreements and other constructive arrangements between states and indigenous peoples. A questionnaire is available for the purpose.

A questionnaire is also available, for submissions by 30 April 1991, in relation to the study by the UN's Centre on Transnational Corporations on "Investments and Operations on the Lands of Indigenous Peoples". Applications for funding support to attend the ninth session of the Working Group on Indigenous Populations in July - August 1991, should be submitted by 30 March 1991. A questionnaire is provided for the purpose and is available from the ALC. Such applications should be addressed to the Board of Trustees, Voluntary Fund for Indigenous Populations at the Centre for Human Rights. The other submissions can be addressed simply to the

Centre for Human Rights

Palais des Nations

CH -1211 Geneva 10


The Human Rights Committee

The Human Rights Committee comprises experts to monitor implementations of the International Covenant on Civil and Political Rights. Australia has ratified the covenant and is considering ratification of the first Optional Protocol. The latter would permit individual communications to the Human Rights Committee.

Canada ratified the Optional Protocol some years ago. In its 1990 report, the Human Rights Committee reported on its consideration of individual communications. One of these was brought against Canada by Chief Bernard Ominayali and the Lubicon Lake Band, a Cree band living in the Canadian Province of Alberta.

One of the Band's claims was that it had been denied the right of self-determination and the right of Band members to dispose freely of their natural wealth and resources, as recognised in Article 1 of the Covenant. The committee held, however, that a violation of Article 1 cannot be resolved before the Committee under the Optional Protocol, in effect, because it is a collective right and the Optional Protocol provides only for communications where individual rights have been violated, ie, the rights set out in Articles 6-27 inclusive. But they added;

"There is, however, no objection to a group of individuals, who claim to be similarly effected, collectively to submit a communication about alleged breaches of their rights".

But the Committee did find a violation of Article 27 which protects "the rights of persons, in community with others, to engage in economic and social activities which are part of the community to which they belong." The Committee concluded;

"Historical inequalities, to which the State party refers, and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band and constitute a violation of Article 27 so long as they continue. The State party proposes to rectify the situation by a remedy that the Committee deems appropriate within the meaning of Article 2 of the Covenant "

It seems clear, then, that if Australia does ratify the First Optional Protocol, it may not provide an easy means for arguing self-determination.

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