Commonwealth Policy Studies Unit

Commonwealth Policy Studies Unit Memorandum to the Commonwealth

Heads of Government attending CHOGM, Brisbane, Australia, 6-9th October, 2001.

Recognising and Protecting Indigenous Peoples Rights in the Commonwealth

Executive Summary

Commonwealth countries have a special interest in recognising and protecting the rights of Indigenous peoples, of whom around 150 million live in the 54 member states of the Commonwealth of Nations. This is unfinished business for an association built on the national independence which replaced an empire. In other circumstances such Indigenous peoples might have had recognised statehood. Instead they are frequently disempowered and subjected to discrimination with regard to jobs, education, welfare, culture, language and especially in relation to their land rights. Some groups were subordinated prior to colonialism. Many suffered under colonialism. Others have been repressed or marginalised by intolerant versions of national development since Independence. Many Commonwealth countries have not treated their Indigenous peoples fairly or justly.

The Commonwealth association and some of its member states have been negligent in giving Indigenous rights the attention they deserve. It is time that the Commonwealth made amends. This is important because in the Harare Commonwealth Declaration (1991), Governments committed themselves to take action to promote the human rights of their citizens and this includes the human rights of Indigenous peoples. Effective international action in support of Indigenous peoples will strengthen the existing network of international human rights protections. On the basis of its initial work on Indigenous Rights, the CPSU recommends that Commonwealth human rights policy must recognise the special situation of Indigenous and tribal peoples. It must recognise their marginalisation, their vulnerability, their lack of development, and the legitimacy of their goals of distinct group survival. The CPSU calls on the Commonwealth of 54 nations to include support for Indigenous rights in the forthcoming Brisbane Commonwealth Declaration.

The CHOGM is an appropriate avenue to try to advance Indigenous issues. Today Indigenous peoples' human rights are routinely flouted around the Commonwealth. Any long-term strategies to promote human rights must therefore include Indigenous rights. The issue of Indigenous rights has been placed firmly on the agenda of the other international organisations and the Indigenous community and others concerned with their rights and welfare hope that the forthcoming Brisbane Declaration will include the rights of Indigenous peoples within its framework. This Declaration will be morally binding on governments and could ensure future protection of Indigenous peoples rights.

This Memorandum outlines the specific recommendations of the CPSU for the Commonwealth Heads of Government Meeting. The Unit seeks to encourage Commonwealth member states to:

• Recognise that Indigenous peoples have rights that need to be protected and that Indigenous rights must be an integral part of any serious programme for the realisation of human rights;
• Recognise Indigenous peoples as 'peoples' with the right to freely determine their own future themselves, a future free from discrimination on the basis of race and one where all peoples are equal. In this context, they should support the right of all peoples, including Indigenous peoples to self-determination;
• Accept responsibility to take specific action to recognise and respect Indigenous peoples' rights and to have this reflected in the forthcoming Brisbane Commonwealth Declaration; such as:
  • Establishing an Indigenous Advocacy Unit within the Commonwealth Secretariat, to channel specific enquiry, advocacy or support;
  • Establishing an Expert Working Group on Indigenous Peoples to report to future CHOGMs on current needs and possible future action;
  • Inaugurating a High Commissioner for Human Rights, who could take up the issue of Indigenous peoples' rights in the Commonwealth;
• A commitment to review national and international policies that adversely affect the rights of Indigenous peoples, such as:
  • Recognising the need to protect Indigenous peoples' land ownership rights;
  • Noting the requirements of existing international standards, particularly the ICERD General Recommendation XX111 and ILO Convention No. 169, that prior, free and informed consent of Indigenous peoples be obtained in all matters of development that affect them;
  • Supporting the principle that states and intergovernmental organisations, such as the Commonwealth, the World Bank, the IMF, regional banks, and the WTO, should together with Indigenous peoples review the impacts of their laws, policies and programmes with the goal of revising those that are incompatible with protection of the rights of Indigenous peoples;
  • Supporting the principle that states provide effective remedies, recourses, redress and other measures for the loss and destruction of Indigenous lands, natural resources, and environment, resulting from exploration and exploitation and extractive activities and programmes;
• Support policies that assist Indigenous advancement, such as:
  • Supporting a reference in the revised Harare Declaration calling on Commonwealth Governments to conclude their negotiations on the draft UN Declaration on the Rights of Indigenous Peoples as soon as possible and adopt a Declaration that takes full account of the needs and interests of Indigenous peoples.
  • Effectively implementing, with the necessary funding and personnel, the UN Permanent Forum on Indigenous Issues.
  • Incorporating the recommendations on Indigenous rights from the United Nations World Conference against Racism, Durban, South Africa, September 2001, into the forthcoming Brisbane Commonwealth Declaration.

It is important that this CHOGM breaks new ground with regard to Indigenous rights and that the forthcoming Brisbane Commonwealth Declaration acknowledges the need to protect the rights of Indigenous peoples, and that Commonwealth leaders follow up with further commitments.

1. The Commonwealth Policy Studies Unit and the Indigenous Peoples' Rights in the Commonwealth Project

The CPSU is conducting a three year research and advocacy project on Indigenous Peoples Rights in the Commonwealth, at the Institute of Commonwealth Studies, a research institute within the University of London (see Appendix 1 for details of the project's funding and its staff; and a description of the origin, aim and scope of the project).

The CPSU is a think-tank attending to the needs of states, communities, business and non-governmental organisations (NGOs) in the Commonwealth of 54 nations. The Unit began work in mid-1999 in two fields - the impact of globalisation, and the fruits of the Harare Commonwealth Declaration, 1991, which have led to progress in democratisation, the strengthening of civil society, and human rights. The Indigenous Rights in the Commonwealth project is an integral part of the Unit's focus on the Commonwealth and human rights.

Indigenous issues are relevant to Commonwealth countries. There are an estimated 150 million Indigenous peoples living in Commonwealth countries yet, wherever they may live, Indigenous peoples suffer routinely from social, economic and cultural marginalisation and discrimination on the basis of their race, colour, descent, national or ethnic origin. However, while the vulnerable situation faced by many Indigenous peoples is the direct result of colonialism, the Commonwealth has not yet taken full cognisance of the inequities faced by Indigenous peoples.

While it is recognised that there are considerable difficulties defining 'Indigenous peoples', for the purposes of the project, the Unit utilises the following working definition:

'Typically, indigenous peoples are differentiated from others by virtue of their (a) prior origin in a territory, (b) subjugation by external political structures such as those of nation states, (c) cultural distinctiveness form the majority population [including a special cultural tie with their lands], and (d) self-definition as indigenous or 'first peoples'' (Saugestad 1998: 24-44).

The CPSU sees in the CHOGM 2001 a timely opportunity for the 54 Commonwealth member states to make real their commitment, made in the Harare Commonwealth Declaration (1991), to the protection and promotion of the fundamental political values of the Commonwealth, including:

'fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief'.

At this CHOGM the Commonwealth member states will reaffirm their commitment to the protection and promotion of fundamental human rights. This must include the rights of Indigenous peoples. In this memorandum, the CPSU stresses that recognising and protecting the rights of Indigenous peoples must be an integral part of any serious programme for the realisation of human rights.

Since the Harare Commonwealth Declaration, the Commonwealth has been playing a significant role in the promotion and protection of human rights for its citizens. However, the Harare Declaration does not include any reference to Indigenous rights. In this Memorandum the CPSU emphasises that an effective programme for the realisation of human rights must include the protection of Indigenous rights. The CPSU urges the Commonwealth to recognise the special situation of Indigenous and tribal peoples in its human rights policy and to acknowledge their marginalisation, their vulnerability and the legitimacy of their goals of distinct group survival. On the basis of its initial work on Indigenous Peoples Rights in the Commonwealth, the Unit calls on the Commonwealth to recognise its responsibility to Indigenous peoples, and the potential role that the Commonwealth can play in the area of Indigenous rights. Commonwealth attention to the rights of Indigenous peoples is important because effective international action in support of Indigenous peoples will strengthen the existing network of international human rights protections. The Unit urges the Commonwealth Governments to include support for Indigenous rights in the forthcoming Brisbane Commonwealth Declaration.

This Declaration will be morally binding on Commonwealth governments and could ensure future protection of the rights of Indigenous peoples. The Unit calls on the Commonwealth Heads of Government to follow up progress made at the CHOGM 2001 with further commitments to protecting the rights of Indigenous peoples.

The CPSU welcomes the opportunity to circulate this Memorandum to the Commonwealth Heads attending the CHOGM, 2001. This Memorandum provides a brief account of international initiatives currently being pursued in recognition of Indigenous peoples' needs; it makes the case for a Commonwealth interest in Indigenous rights; and it outlines the specific recommendations of the CPSU for the CHOGM.

2. International initiatives currently being pursued in recognition of Indigenous Peoples needs

Since the early 1920s the International Labour Organisation (ILO) has been studying the situation of Indigenous peoples, from the perspective of their participation in the labour market. As a result of the findings of a study, Indigenous Peoples: Living and Working Conditions of Aboriginal Populations in Independent Countries (1953), the ILO adopted the first international instrument exclusive to Indigenous peoples, the ILO Convention on Indigenous and Tribal Populations, 1957 (No 107). This Convention was adopted in response to the challenge to protect Indigenous peoples against discrimination and to ensure their continued existence. The following countries ratified the Convention: Belguim, Cuba, Dominican Republic, El Salvador, Ghana, Haiti, India, Egypt, Syrian Arab Republic, Pakistan, Portugal, Tunisia, Brazil, Malawi, Panama, Bangladesh, Angola, Guinea-Bissau and Iraq.

Some thirty years later, the ILO adopted a more progressive instrument to replace the earlier Convention, which was intended to assimilate Indigenous and tribal populations into mainstreams social groups, the Convention on Indigenous and Tribal Peoples, 1989, (No. 169). This Convention was based on the premise that Indigenous peoples have the right to survive as separate peoples with their own cultures and traditions. It also highlights the need for special measures to protect these peoples and, as stated by a recent publication, ILO Convention on Indigenous and Tribal Peoples, 1989 (No. 169): A Manual (2000):

'The cultures and ways of life of indigenous and tribal peoples are often different from the rest of the national population, and they may be discriminated against because of their specific cultures, traditions and values. As a result, many indigenous and tribal peoples face cultural extinction.'

As of 2000, fourteen countries have signed this Convention, namely: Norway, Mexico, Colombia, Bolivia, Costa Rica, Paraguay, Peru, Honduras, Denmark, Guatemala, Netherlands, Fiji, Ecuador and Argentina.

The United Nations first focused its attention formally on the problems of Indigenous peoples in the context of its work against racism and discrimination. In 1970, the UN Sub-Commission on Prevention and Discrimination and Protection of Minorities commissioned Special Rapporteur, Martinez Cobo, to undertake a study, The Problem of Discrimination against Indigenous Populations. That monumental study, completed in 1984, carefully documented modern discrimination against Indigenous peoples and their precarious situation. It concluded that the continuous discrimination against Indigenous peoples threatened their existence.

The establishment of the United Nations Working Group on Indigenous Populations (WGIP) in 1982, was a direct result of the Cobo study. Consisting of five independent experts, the Working Group has met annually in Geneva, and, until now, has been the only arena in the United Nations system in which Indigenous peoples can state their views.

At the World Conference on Human Rights, Vienna, June 1993, the international community made a commitment to the rapid and complete elimination of all forms of racism and racial discrimination, including racism and racial discrimination against Indigenous peoples. In its resolution (A/RES/132 of 23 February 1993), the GA acknowledged that 'indigenous peoples are at times victims of particular forms of racism and racial discrimination' and urged 'The Secretary General, the United Nations bodies, the Specialised agencies, all Governments, intergovernmental organisations and relevant non-governmental organisations, to pay particular attention to the situation of indigenous people.'

During the course of its work, the UN Committee on the Elimination of Racial Discrimination, which is responsible for monitoring the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), has looked into the plight of Indigenous peoples living in many of its member states. On August 1997, the Committee adopted General Recommendation XX111 (51), stating its concern at the continuing discrimination against Indigenous peoples:

'The Committee is conscious of the fact that in many regions of the world indigenous peoples have been and are still being, discriminated against, deprived of their human rights and fundamental freedoms, and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently the preservation of their culture and their historical identity has been and still is jeopardised.'

The Committee called for the restitution of the lands and territories of Indigenous peoples and, where this was impossible, for just, fair and prompt compensation, including comparable lands.

The United Nations International Decade of the World's Indigenous People (1995-2004), has helped to focus efforts in the UN system on two primary goals: the creation of a Permanent Forum on Indigenous Issues, and the drafting of a Declaration on the Rights of Indigenous Peoples.

In April 2001, the Economic and Social Council (ECOSOC), established the Permanent Forum on Indigenous Issues, consisting of eight governmental experts and eight Indigenous representatives. This was the first time Indigenous representatives were allowed to address directly an official United Nations Charter body. The Permanent Forum is the most significant and concrete step taken so far by the United Nations to address Indigenous peoples' issues.

In 2001, the Commission on Human Rights also established a Special Rapporteur to address Indigenous peoples concerns. In June of this year, Mr Rodolfo Stavehagen was appointed to the position.

In 1994, the UN Working Group on Indigenous Peoples adopted a Draft Declaration on the Rights of Indigenous Peoples. This draft instrument was elaborated with the active participation of Indigenous peoples from all over the world. At present, the Draft Declaration is still under consideration by a Working Group of the UN Commission on Human Rights. It is looking increasingly unlikely that the Draft Declaration will be finalised and adopted before the end of the United Nations International Decade of the World's Indigenous People in 2004, as the various states continue to disagree about the wording of the text, in particular, those parts of the text which refer to the collective rights of Indigenous peoples.

Indigenous peoples lobbied hard to get the issue of Indigenous rights on the agenda of the recent United Nations World Conference against Racism, held in Durban, South Africa, in September 2001. However, according to Indigenous peoples, the Draft Declaration and Plan of Action (UNGA A/CONF.189/4 20 August 2001) did not adequately acknowledge and address the racism and racial discrimination that they face. Three paragraphs in the Draft Declaration, 26, 27 and 51, in particular, are seen by Indigenous peoples as restricting their rights:

26 Fully recognize the rights of indigenous peoples consistent with the principles of sovereignty and territorial integrity of States, and therefore stress the need to adopt the appropriate constitutional, administrative, legislative and judicial measures, including those derived from applicable international instruments; (Adopted by the 3rd PrepCom)

27 The use of the term 'indigenous peoples' in the Declaration and Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance cannot be construed as having any implications as to rights under international law. Any reference to rights associated with the term 'indigenous peoples' is in the context of ongoing multilateral negotiations on texts that specifically deal with such rights and is without prejudice to the outcome of those negotiations; (Adopted by the 3rd PrepCom)

51. We also recognize the special relationship that indigenous peoples have with the land as the basis for their spiritual, physical and cultural existence and encourage States, wherever possible, to ensure that indigenous peoples are able to retain ownership of their lands and of those natural resources to which they are entitled under domestic law; (Adopted by the 3rd PrepCom)

Paragraph 27, which qualifies the right to self-determination of Indigenous peoples, is seen by Indigenous peoples as racist and contrary to the fundamental principles of international law.

Indigenous peoples made their position on the issue of self-determination and land ownership rights clear in paragraph 19 of the WCAR NGO Forum Declaration (3 September 2001):

19. Affirming that Indigenous Peoples are bearers of both collective and individual rights which include their right to self-determination and to the legitimate exercise of control over their resources and dominion of their territories on the basis of their historical and cultural identity and have the right and responsibility to transmit to future generations their ancestral territories and identity.

However, a number of other paragraphs in the Draft Declaration, such as 47, 48 and 49, represent an advance for Indigenous peoples:

47. We recognize that the indigenous peoples have been victims of discrimination for centuries and affirm that they are free and equal in dignity and rights and should not suffer any discrimination, particularly on the basis of their indigenous origin and identity, and we stress the continuing need for action to overcome the persistent racism, racial discrimination, xenophobia and related intolerance that affect them; (Adopted by the 3rd PrepCom)

48. We recognize the value and diversity of the cultures and the heritage of indigenous peoples, whose singular contribution to the development and cultural pluralism of society and full participation in all aspects of society, in particular on issues that are of concern to them, are fundamental for political and social stability, and for the development of the States in which they live; (Adopted by the 3rd PrepCom)

49. We reiterate our conviction that the full realization by indigenous peoples of their human rights and fundamental freedoms is indispensable for eliminating racism, racial discrimination, xenophobia and related intolerance. We firmly reiterate our determination to promote their full and equal enjoyment of civil, political, economic, social and cultural rights, as well as the benefits of sustainable development, while fully respecting their distinctive characteristics and their own initiatives; (Adopted by the 3rd PrepCom).

It was made clear in the Draft Programme of Action (UNGA A/CONF.189/5 22 August 2001), that the plight of Indigenous peoples had been put forcefully on the world agenda (see Appendix 2 for paragraphs 245 - 251 of the Draft Programme of Action).

The use of the term 'peoples' throughout the text of the Draft Declaration marked a clear recognition by the vast majority of states of the collective rights of Indigenous peoples, despite the qualification of the right to self-determination when applied to Indigenous peoples in paragraph 27. It is hoped that this development will facilitate the discussions in the Working Group on the Draft Declaration on the Rights of Indigenous Peoples on the articles regarding collective rights and the right to self-determination, and speed up the adoption process.

3. A case for a Commonwealth interest in Indigenous Rights

There are approximately 150 million Indigenous peoples living in Commonwealth countries yet, wherever they may live, in an industrialised country or a developing one, from the Aborigines in Australia, to the Amerindians in Belize, from the Jummas in Bangladesh to the Innu in Canada, from the Adivasis in India to the Orang Asli in Malaysia, and from the Bushmen in Southern Africa to the Ik in Uganda, Indigenous peoples routinely belong to the most marginalised, vulnerable and least developed sector of society.

In the Harare Commonwealth Declaration, 1991, the Commonwealth Heads reaffirmed their commitment to the fundamental principles set out in the Declaration of Commonwealth Principles agreed at the CHOGM in Singapore in 1971. At Harare, the Commonwealth member states pledged to work with renewed vigour, concentrating especially in the protection and promotion of the fundamental political values of the Commonwealth:

&Mac183; fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief.

The Commonwealth of Nations, which has become a major player for human rights in the world through its commitment to the Harare Declaration, and which is, therefore, seen by Indigenous peoples as having a special potential for assisting them to realise their rights, can and should do more to promote and promote the rights of Indigenous peoples. While many of the problems facing Indigenous peoples are the direct result of colonialism, the Commonwealth has not yet taken full cognisance of the rights of Indigenous peoples. While other major international organisations have been working hard to define and protect Indigenous peoples’ rights and cultures, the Commonwealth has remained apparently oblivious to the situation of its most vulnerable citizens. The Commonwealth does not yet have an explicit position with regard to Indigenous and tribal peoples - those who were the earliest inhabitants of the 54 nation states which comprise the Commonwealth.

In this Memorandum, the CPSU argues that Indigenous peoples have rights that need to be protected and that Indigenous rights must be an integral part of any serious programme for the realisation of human rights;

The Unit urges the Commonwealth to recognise Indigenous peoples as 'peoples' with the right to freely determine their own future themselves, a future free from discrimination on the basis of race and one where all peoples are equal. In this context, member states are called to support the right of all peoples, including Indigenous peoples to self-determination.

The Commonwealth has no philosophical statement that could encourage and support member states in formulating appropriate Indigenous policy at the local level. The Commonwealth is not collaborating with the efforts of other international organisations, like the United Nations and International Labour Organisation, when it could utilise its goodwill and educational network to co-ordinate greater understanding of Indigenous issues and responsibilities among member states.

Few Commonwealth governments have participated in the adoption process of the UN draft Declaration on the Rights of Indigenous Peoples. For example, only 9 Commonwealth states attended the 6th session of the Working Group, November-December 2000, in Geneva, namely: Australia, Bangladesh, Canada, India, Malaysia, New Zealand, Pakistan, South Africa and UK.

Of the fifty-four Commonwealth member states, only Fiji has ratified ILO Convention, 1989, No. 169. However, the ILO Convention, 1957, No. 107, which was ratified by India, Pakistan, and Bangladesh, remains valid in those countries.

In this Memorandum, the CPSU urges the Commonwealth member states to support a reference in the forthcoming Brisbane Commonwealth Declaration calling on Commonwealth Governments to conclude their negotiations on the draft UN Declaration on the Rights of Indigenous Peoples as soon as possible and adopt a Declaration that takes full account of the needs and interests of Indigenous peoples.

The Unit also calls on the Commonwealth member states to effectively implement, with the necessary funding and personnel, the UN Permanent Forum on Indigenous Issues.

While a number of Commonwealth countries have developed individually specific policies to recognise and protect Indigenous peoples, there remains no Commonwealth-wide commitment to Indigenous peoples. There is no official Commonwealth publication descriptive of the current economic, social and cultural status of Indigenous peoples in member states and there is no administrative mechanism within the Commonwealth Secretariat, to channel specific enquiries, advocacy or support.

Unlike the Commonwealth Heads of Government, Commonwealth Non-Governmental Oganisations have seen the association as having a special potential for assisting Indigenous peoples to realise their rights. Put Our World to Rights (1991), the first book published by the Commonwealth Human Rights Initiative (CHRI), made this one of its eight human rights priorities for the Commonwealth. The CHRI, which is now backed by eight Commonwealth NGOs, recommended that "Commonwealth human rights policy must recognise the special situation of Indigenous and tribal peoples. It must recognise their marginalisation, their vulnerability and the legitimacy of their goals of distinct group survival." Although this publication was influential in the run up to the Harare summit, governments as a whole were not moved to include any support for Indigenous rights in the Harare Commonwealth Declaration. In its submission to the CHOGM, Brisbane, October 2001, CHRI will reiterate its concern for Indigenous peoples, and call for their rights to be protected.

In this Memorandum, the CPSU recommends that an Indigenous Advocacy Unit be established within the Commonwealth Secretariat, to channel specific enquiry, advocacy or support. The Unit could employ two Indigenous leaders to coordinate an Action Plan. An obvious start would be to establish an exchange programme between Indigenous communities in different Commonwealth countries to share information about various self-determination models, health, employment and education programmes, etc.

Australia was instrumental in setting up the Human Rights Unit at the Commonwealth Secretariat - its first Head was an Australian - in Melbourne, 1981. The Unit encourages Australia to take a similar lead in setting up an Indigenous Advocacy Unit at the Commonwealth Secretariat. As the host and chair of the CHOGM 2001, and with considerable experience in developing indigenous rights policy, Australia is invited to take a special role in sharing its experience of public policy development with other Commonwealth states. The Brisbane meeting has particular significance for Indigenous peoples because Australia is this year celebrating its national centenary and seeking reconciliation with its Aboriginal and Torres Strait Islander population.

The Unit also urges the Commonwealth to establish an Expert Working Group on Indigenous Peoples to report to future CHOGMs on current needs and possible future action. There are precedents for such an approach, such as the Expert Working Group on Women and Development, 1994.

The CPSU also calls on the Commonwealth to inaugurate a High Commissioner for Human Rights, who could take up the issue of Indigenous peoples’ rights in the Commonwealth.

The case for a Commonwealth interest in this area of human rights is both historical and contemporary. Because of the nature and history of Commonwealth states, Indigenous issues arise in a great many of the Commonwealth countries. For example, there are still serious problems in the following countries: Australia (the 1996 High Court Wik judgement and the 1998 Native Title Amendments Act, have severely limited the Indigenous people's native title rights, as set out in the Native Title Act, 1993, and only a handful of native title claims have since been recognised); Bangladesh (where the Jumma people face continuing human rights violations by the security forces and Bengali settlers in the Chittagong Hill Tracts, even though there has been a peace agreement following the war between the Bangladesh Government and the CHT People's United Party); Belize (where the Maya people are struggling to preserve their land rights and to protect the rainforest from the depredations of logging companies); Botswana (because Khwe/Bushmen and Bakgalagadi peoples have been evicted from the Central Kalahari Game Reserve to make way for conservation, tourism and diamond mining, and now face discrimination, harassment and torture as they struggle for their right to remain on their ancestral land); Cameroon (where the forest peoples are engaged in disputes over land tenure); Canada (due, for instance, to the social crisis of suicide, alcoholism and degradation faced by the Innu people); Guyana (where many Amerindian communities have not had their land titles recognised and large tracts have been handed out in timber concessions); India (where the survival of Andaman Islanders is under threat and where Adivasis often suffer gross violations of their rights); Kenya (where land belonging to the Maasai community of Iloodoariak has been sold to outsiders); Malaysia (especially for the Orang Asli who are struggling for control over their traditional territories and resources); Namibia (where a dam project has threatened to flood the land of the Himba people); New Zealand (where the Maori continue to suffer from poverty and landlessness in their long wait for the Treaty of Waitangi to be honoured); Nigeria (where people in the Niger delta continue to suffer from environmental degradation and damage to fish stocks from oil pollution); South Africa (where, more positively, the San/Bushmen had the first part of their land claim recognised in March 1999, in the Kalahari Gemsbock National Park); Sri Lanka (where the Wanniyala-Aetto (Veddah) are at risk of being fully assimilated into the majority community); and Tanzania (where Maasai pastoralists have been pushed off their land).

It is clear that Indigenous peoples often belong to the least developed sector of society in many Commonwealth member states and that current concepts of development do not do justice to Indigenous peoples. A different approach is needed on the part of Commonwealth member states. In this Memorandum, the CPSU calls on the Commonwealth member states to review national and international development policies that adversely affect the rights of Indigenous peoples.

The Unit sees in the forthcoming Brisbane Commonwealth Declaration a great opportunity to redress the injustices suffered by Indigenous peoples. Heads of Government should recognise that Indigenous rights are an important part of any dedicated programme for the realisation of human rights. Leadership is required to address a continuing legacy of colonialism, and, in some cases, pre-colonial patterns of subordination which have unjustly survived to the present.

It is important that CHOGM 2001 breaks new ground with regard to Indigenous rights and that the forthcoming Brisbane Commonwealth Declaration acknowledges the need to protect the rights of Indigenous peoples, and that Commonwealth leaders follow up with further commitments.

4. Recommendations to CHOGM:

This Memorandum outlines the specific recommendations of the CPSU for the Commonwealth Heads of Government Meeting. The Unit seeks to encourage Commonwealth member states to:

• Recognise that Indigenous peoples have rights that need to be protected and that Indigenous rights must be an integral part of any serious programme for the realisation of human rights;
• Recognise Indigenous peoples as 'peoples' with the right to freely determine their own future themselves, a future free from discrimination on the basis of race and one where all peoples are equal. In this context, they should support the right of all peoples, including Indigenous peoples to self-determination;
• Accept responsibility to take specific action to recognise and respect Indigenous peoples' rights and to have this reflected in the new and forthcoming Brisbane Commonwealth Declaration; such as:
  • Establishing an Indigenous Advocacy Unit within the Commonwealth Secretariat, to channel specific enquiries, advocacy or support;
  • Establishing an Expert Working Group on Indigenous Peoples to report to future CHOGMs on current needs and possible future action;
  • Inaugurating a High Commissioner for Human Rights, who could take up the issue of Indigenous peoples' rights in the Commonwealth;
• A commitment to review national and international policies that adversely affect the rights of Indigenous peoples, such as:
  • Recognising the need to protect Indigenous peoples' land ownership rights;
  • Noting the requirements of existing international standards, particularly the ICERD General Recommendation XX111 and ILO Convention No. 169, that free, prior informed consent of Indigenous peoples be obtained in all matters of development that affect them;
  • Supporting the principle that states, intergovernmental organisations, the World Bank, the IMF, regional banks, and the WTO should review with Indigenous peoples the impacts of their laws, policies and programmes with the goal of revising those that do not protect the rights of Indigenous peoples;
  • Supporting the principle that states provide effective remedies, recourses, redress and other measures for the loss and destruction of Indigenous lands, natural resources, and environment, resulting from exploration and exploitation and extractive activities and programmes;
• Support policies that assist Indigenous advancement, such as:
  • Supporting a reference in the forthcoming Brisbane Commonwealth Declaration calling on Commonwealth Governments to conclude their negotiations on the draft UN Declaration on the Rights of Indigenous Peoples as soon as possible and adopt a Declaration that takes full account of the needs and interests of Indigenous peoples.
  • Effectively implementing, with the necessary funding and personnel, the UN Permanent Forum on Indigenous Issues.
  • Incorporating the recommendations on Indigenous rights from the United Nations World Conference against Racism, Durban, South Africa, September 2001, into the forthcoming Brisbane Commonwealth Declaration.

Helena Whall, Indigenous Rights in the Commonwealth Project Officer

Commonwealth Policy Studies Unit, September 2001

Acknowledgments

I would like to thank the following CPSU staff and advisers for their contributions to the report; Richard Bourne, Margaret Reynolds, Patrick Rata, Jonathon Mazower, Albert Barume, Sandra Phillips and Nicky Jones.

Appendix 1

1. Origin of the Project and Funding

In July 1999, a workshop on Indigenous Rights in the Commonwealth was held at the Institute of Commonwealth Studies. It was organised by the CPSU, in association with the Menzies Centre for Australian Studies, the Trustee Committee of the Commonwealth Human Rights Initiative and the University of Queensland. A report on the proceedings of the workshop, A Dialogue on Indigenous Rights in the Commonwealth, was published in September 1999.

There was a consensus at the Dialogue that the time had come for the issue of Indigenous peoples' rights to be put on the Commonwealth agenda for the new millennium. The goal of the International Year of Indigenous Peoples, as outlined in Resolution 45/164 of the General Assembly of the United Nations passed in 1991, was strengthening international efforts 'for the solution of problems faced by indigenous communities in such areas as human rights, the environment, development, education, health, and so on.' Indigenous peoples throughout the Commonwealth and others concerned for their rights and welfare, hope that the Commonwealth and its member states begin to take this goal seriously. The Dialogue marked the beginning of an important process ensuring that the Commonwealth accepts its responsibility to Indigenous peoples.

Following the Dialogue, the Commonwealth Association of Indigenous Peoples (CAIP) was set up. CAIP was given accreditation at the Commonwealth Heads of Government Meeting (CHOGM) in Durban, 1999, and will also have accreditation at the CHOGM in Brisbane in October 2001. The CPSU is committed to working with Indigenous peoples and their representatives in the coordination of this project.

In January 2001, the CPSU received its largest grant to date for over £250,000, from the European Commission and Department for International Development, UK, for the three- year research and advocacy project on Indigenous Peoples' Rights in the Commonwealth.

2. Staff and Advisers

Richard Bourne, Head of CPSU, is the Director of the Project, and is responsible for a separate, but complimentary two-year project funded by the Department for International Development, UK, focusing specifically on the international development targets of 2015, and Indigenous peoples' economic, social and cultural rights. Richard Bourne has had extensive experience in working with Indigenous peoples and their representatives as Chair of Survival International, a London-based NGO which promotes the rights of Indigenous peoples, during 1983-1998. Richard Bourne is familiar with Commonwealth and human rights issues as Deputy Director of the Commonwealth Institute, 1983-1988 and founding Director of the non-governmental Commonwealth Human Rights Initiative (1990-1992), whose Trustee Committee he continues to Chair. He has been at the forefront of efforts to make the Commonwealth an effective world player for human rights.

Helena Whall took up the post of Project Officer in February 2001. Dr Whall has considerable experience in research and advocacy in the field of human rights. She received her doctorate in International Relations from the Institute of Commonwealth Studies in 1999. Her PhD thesis was titled 'The Failure of the Peace Process in Sri Lanka, 1994-1995: Lessons Learned'. She is the author of 'The Right to Self-Determination: The Sri Lankan Tamil National Question', (1995). Helena Whall was the rapporteur for the Dialogue in July 1999 and prepared the report on the proceedings of the workshop.

Margaret Reynolds, a former Minister in Australia's Labor Government, has played a prominent practitioner role for rights and reconciliation with the Aboriginal and Torres Strait Islander peoples of Australia. Professor Reynolds is currently Adjunct Professor, at the University of Queensland, and Chair of the Advisory Commission, Commonwealth Human Rights Initiative. She is the Project's Australian-based partner and co-ordinator.

Sandra Phillips is the Project's Australian-based part-time Advocacy Consultant and Nicky Jones is the Project's Australian-based part-time Research Consultant.

The Project has a three member Advisory Group which meets on an annual basis. It consists of:

Patrick Rata, who is a New Zealand public servant of Maori origin. He is currently based at the Office of the Director-General, World Trade Organisation, Geneva, and formerly worked at the Human Rights Unit, Foreign Ministry, Wellington, New Zealand.

Jonathon Mazower is the Campaigns Coordinator at Survival International, UK and is particularly involved in Amerindian rights issues in the Americas.

Albert Barume is an African lawyer currently researching issues of East African pastoralists for a Ph.D. at the Human Rights Centre/Law Department at Essex University. He is the author of 'Heading Towards Extinction?' published by the International Work Group for Indigenous Affairs, (2000).

3. Aim and Scope of Project

There is a paucity of co-ordinated information about the Commonwealth's Indigenous citizens and a lack of any educational or advocacy programmes to develop understanding of their rights and needs in many member states. This project aims to improve and strengthen the information exchange, research and publicity on issues concerning Indigenous peoples' rights on a pan-Commonwealth basis. It is using electronic mail and the information highway to aid the spread of best Commonwealth practice in relation to land rights, economic empowerment and constitutional status. The project will assist countries of the Commonwealth, Indigenous groups, and non-governmental bodies in addressing matters of land and cultural rights and constitutional status. The project has two interrelated aspects:

• First it will bring together, in conjunction with representatives of Indigenous peoples themselves, information about key issues affecting them in Commonwealth states. The main concerns include, amongst others, constitutions, treaties and status; land rights; questions of cultural identity or assimilation; relationships to development, the environment and economic and social rights.
• The project will focus on 20 Commonwealth member states where there are significant issues of Indigenous rights, including: Australia, Fiji, Malaysia, New Zealand, Papua New Guinea (South Pacific & South-East Asia); Bangladesh, India, Pakistan and Sri Lanka (South Asia); Botswana, Cameroon, Kenya, Namibia, Nigeria, South Africa, Tanzania and Uganda (Africa); and Belize, Canada, and Guyana (Americas & Caribbean).
• Four regional consultative meetings will be held. Approximately fifteen to twenty Indigenous representatives and other experts from the different regions will participate. Each participant will be expected to present a brief paper. These papers will be collated and published in an edited volume at the end of the project. Where possible, regional Indigenous consultants will be identified to assist in the preparation of these expert meetings. The first of these meetings is to take place in Nadi, Fiji, in October 2001.
• The second aspect of the project will be to assist the Commonwealth to include Indigenous rights in its concern for human rights. It will provide relevant expert inputs to the Commonwealth Heads of Government Meeting (CHOGM), in October 2001 in Brisbane, Australia, and to the CHOGM in 2003. In July 2001, the project presented its initial findings to the High Level Review of the Future of the Commonwealth, chaired by President Thabo Mbeki, and it made a submission to the Commonwealth Government delegations attending the UN World Conference on Racism, held in September 2001 in Durban, South Africa. It will present future findings to European Union states involved in development planning. There will then be a follow-up on an intergovernmental and non-governmental basis. The project will promote education and raise awareness of Indigenous issues in civil society, and reinforce respect for the human rights of Indigenous peoples worldwide. The project will also support networking among Indigenous peoples themselves, through the Commonwealth Association of Indigenous Peoples and in other ways.
• The CPSU has been awarded a specific grant from the Department for International Development (DfID), UK, for a two-year project, headed by Richard Bourne. This project will focus specifically on the international development targets of 2015, and Indigenous peoples’ economic, social and cultural rights.

Because so little official recognition is given to Indigenous peoples in many of the Commonwealth member states, statistical information can only be offered as estimates, as government records may not exist or may be unreliable. Since Indigenous people often constitute the poorest sector in society it is necessary to find indicative data. The primary focus of this aspect of the project is the collection, collation and analysis of statistical and associated data on specific Indigenous populations in selected Commonwealth member states. In addition to disaggregating national statistics in a selection of Commonwealth countries, with a focus on Indigenous peoples, the CPSU is planning to conduct several small scale field surveys to collect up-to-date statistical data on select Indigenous groups.

This quantitative research and the findings of the field surveys will feed into and complement the overall Indigenous Rights in the Commonwealth Project.

Appendix 2

Draft Programme of Action (UNGA A/CONF.189/5 22 August 2001)

Indigenous Peoples

245. Recommends that the United Nations Secretary- General conduct an evaluation of the results of the International Decade of the World's Indigenous People (1995-2004) and make recommendations concerning how to mark the end of this Decade, including an appropriate follow-up; (ADOPTED at 3rd PrepCom)

246. Requests States to ensure adequate funding for the establishment of an operational framework and a firm basis for the future development of the Permanent Forum on Indigenous Issues within the United Nations system; (ADOPTED at 3rd PrepCom)

247. Urges States to cooperate with the work of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people and requests the Secretary-General and the High Commissioner for Human Rights to ensure that the Special Rapporteur is provided with all the necessary human, technical and financial resources to fulfil his/her responsibilities; (ADOPTED at 3rd PrepCom)

248. Calls upon States to conclude negotiations on and approve as soon as possible the text of the draft declaration on the rights of indigenous peoples, under discussion by the working group of the Commission on Human Rights to elaborate a draft declaration, in accordance with Commission resolution 1995/32; (ADOPTED at 3rd PrepCom)

249. Urges States, [to consider] in the light of the relationship between racism, racial discrimination, xenophobia and related intolerance and poverty, marginality and social exclusion of peoples and individuals at both the national and international levels, to enhance their policies and measures to reduce income and wealth inequalities and to take appropriate steps, individually and through international cooperation [including through the provision of additional resources required], to promote and protect economic, social and cultural rights on a non-discriminatory basis; (ADOPTED at 2nd PrepCom)

250. Urges States and financial and development institutions to mitigate the negative effects of globalization by examining how their policies and practices affect indigenous peoples; by ensuring that their policies and practices contribute to the eradication of racism through the participation of indigenous peoples in development projects in accordance with the principle of informed consent; by democratizing international financial institutions; by developing enforceable codes of conduct for transnational corporations; and by consulting with indigenous peoples on any matter that may affect their physical, spiritual or cultural integrity;

251. Invites financial and development institutions and the operational programmes and specialized agencies of the United Nations, in accordance with their regular budgets and the procedures of their governing bodies:

(a) To assign particular priority to and allocate sufficient funding, within their areas of competence, to the improvement of the status of indigenous peoples, with special attention to the needs of these populations in developing countries, including the preparation of specific programmes with a view to achieving the objectives of the International Decade of the World's Indigenous People;

(b) To carry out special projects, through appropriate channels and in collaboration with indigenous peoples, to support their initiatives at the community level and to facilitate the exchange of information and technical know-how between indigenous peoples and experts in these areas; (ADOPTED at 3rd PrepCom)