Commonwealth Policy Studies Unit

Commonwealth Policy Studies Unit Memorandum to Commonwealth

Government delegations attending the UN World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance,
(UNWCAR), Durban, August 31st - 7th September, 2001.

Combating Racism against Indigenous Peoples

Executive Summary

Commonwealth countries have a special interest in racism against 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, subject to discrimination with regard to jobs, education, welfare, culture, language and specially 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 Commonwealth Governments in the Harare Commonwealth Declaration (1991) committed themselves to take action against racism and this includes racism against Indigenous peoples. It is also necessary because effective international action in support of Indigenous peoples will strengthen the existing network of international human rights protections.

The UNWCAR is an appropriate avenue to try to advance Indigenous issues. Today racism and racial discrimination is prevalent against Indigenous peoples around the world. Any long-term strategies to combat racism must therefore include Indigenous issues. The issue of Indigenous rights has been placed firmly on the agenda of the World Conference and the Indigenous community and others concerned with their rights and welfare hope that the 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 from racism and racial discrimination.

This Memorandum outlines the specific outcomes Commonwealth Countries should seek, both individually, and collectively, from the Conference:

• Greater recognition of the racism and racial discrimination against Indigenous peoples.
• Recognition of 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 reiterate the right of all peoples, including Indigenous peoples to self-determination.
• Recognition of the need to take specific action against racism and racial discrimination against Indigenous peoples, such as:
  • Adopting a Declaration and a Platform for Action that is comprehensive and practical, and includes the rights of Indigenous peoples within its framework, but also ensures there is monitoring of the implementation of the commitments undertaken at this meeting.
  • Ensuring that a World Conference on Indigenous Peoples is convened before the end of the International Decade of the World's Indigenous Peoples in 2004.
  • Acceding to or ratifying existing international human rights conventions, including the ICERD.
• A commitment from the international community to review national and international policies that adversely affect Indigenous peoples, such as:
  • Recognising the need to protect the rights of Indigenous peoples to their lands and territories and their resources.
  • 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 are racist and discriminatory.
  • 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 UNWCAR Declaration calling on 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.

It is important that this UN Conference breaks new ground with regard to Indigenous issues, and that Commonwealth leaders, at their meeting in Brisbane in October 2001, follow up with further commitments.

1. The Commonwealth Policy Studies Unit

The CPSU is conducting a three year research and advocacy project on Indigenous 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 CPSU welcomes the opportunity to circulate this Memorandum to the Commonwealth Government delegations attending the United Nations World Conference Against Racism (UNWCAR), Durban, South Africa, 2001. The Memorandum provides a brief background note to the UNWCAR 2001; outlines the current status of Indigenous rights in international law; makes the case for Commonwealth attention to racism against Indigenous peoples; and outlines the specific outcomes Commonwealth Countries should seek, both individually, and collectively, from this Conference.

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).

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 encounter all kinds of racism and racial discrimination on the basis of their race, colour, descent, national or ethnic origin. However, while much of the racism and racial discrimination faced by Indigenous peoples is the direct result of colonialism, the Commonwealth has not yet taken full cognisance of the inequities faced by Indigenous peoples.

The CPSU sees in the UNWCAR a timely opportunity for the 54 Commonwealth member states to make real their commitment, made in the Harare Commonwealth Declaration (1991), to oppose 'all forms of racial oppression'. At the World Conference on Human Rights, Vienna, June 1993, the Commonwealth member states reaffirmed their commitment to the rapid and complete elimination of all forms of racism and racial discrimination. This must include racism against Indigenous peoples. In this memorandum, the CPSU stresses that combating racism and racial discrimination against Indigenous peoples must be an integral part of any serious programme for the elimination of all forms of racism and racial discrimination.

Since the Harare Commonwealth Declaration, the Commonwealth has been playing a significant role for 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 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 racism against 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 revised Harare Commonwealth Declaration.

The UNWCAR is an appropriate avenue to try to advance Indigenous issues. The holding of this 2001 World Conference is testimony to the fact that racism and racial discrimination continues to pervade all countries of the world. Any long-term strategies to combat racism must therefore include Indigenous issues. Racism and racial discrimination against Indigenous peoples has been placed firmly on the agenda of the UNWCAR and the CPSU urges the international community to ensure that the Declaration 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 from racism and racial discrimination. The Unit calls on the Commonwealth Heads of Government, at their meeting in Brisbane, in October 2001, to follow up progress made at the UNWCAR with further commitments to combating racism against Indigenous peoples.

2. Background to the UNWCAR

International concern over racial discrimination led to the UN General Assembly (GA) in 1963 adopting a Declaration on the Elimination of Racial Discrimination. In 1965, the GA provided the world community with a legal instrument by adopting the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Article 1 of ICERD defines racial discrimination as:

'any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.'

The Convention specifies the measures that states agree to undertake to eliminate racial discrimination when they ratify the Convention. Today there are 157 states parties to the ICERD. A central objective of the UNWCAR Declaration and Programme for Action should be to promote universal ratification of the ICERD.

Since 1973, the GA has designated three decades of action to combat racism and racial discrimination. The UN has also organised two World Conferences against Racism in 1978 and 1983 respectively. In 1993, the GA, in its resolution (A/RES/132 of 23 February 1993), proclaimed the 'Third Decade to Combat Racism and Racial Discrimination and the Convening of a World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance'. The Conference also marks the International Year for the Elimination of Racial Discrimination.

However, despite these developments the scourge of racism and racial discrimination continues to plague all societies. This world Conference is an admission of the continuing gravity of the problem. The UNWCAR is an occasion to make real progress in this area of human rights. The United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, to be held in Durban, South Africa, from 31st August to 7th September 2001, will give the international community an opportunity to examine the sources and forms of racism, and the strategies for long-term initiatives to combat racism and racial discrimination as we enter the twenty-first century.

3. The International Community and Racism against Indigenous peoples

Since the early 1920s the ILO, the international agency specialising in labour issues, 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. In 1989 the ILO adopted the Convention on Indigenous and Tribal Peoples, 1989, (No. 169), 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.'

Fourteen countries have signed the ILO Convention 1989, (No. 169) as of 2000, namely: Norway, Mexico, Colombia, Bolivia, Costa Rica, Paraguay, Peru, Honduras, Denmark, Guatemala, Netherlands, Fiji, Ecuador and Argentina.

However, the main ILO instrument relating to discrimination is the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). This Convention relates specifically to discrimination in the workplace on the basis of race. The ILO Committee of Experts regularly examines discrimination against Indigenous peoples in this context in those countries that have adhered to this instrument.

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 (a subsidiary body of the Commission on Human Rights) commissioned Special Rapporteur, Martinez Cobo of Ecuador, to undertake a study The Problem of Discrimination against Indigenous Populations. That monumental study, completed only 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 meets annually in Geneva, and, until now, has been the only arena in the United Nations system in which Indigenous peoples could 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. 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 Convention, 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 is not possible, 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 2000, the Economic and Social Council (ECOSOC), the UN Charter body to which the Commission on Human Rights reports, established the Permanent Forum on Indigenous Issues. This consists of eight governmental experts and eight Indigenous representatives. Indigenous representatives will for the first time be allowed to address directly an official United Nations Charter body, ECOSOC. The Permanent Forum is the most significant and concrete step taken so far by the United Nations to address Indigenous peoples' issues.

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.

The Draft Declaration, as it currently stands, has a number of articles relating to discrimination including Article 2, which states:

'Indigenous individuals and peoples are free and equal to all other individuals and peoples in dignity and rights, and have the right to be free from any kind of adverse discrimination, in particular that based on their indigenous origin and identity.'

Due to growing concerns about the environment, the activity undertaken by the Working Group and other United Nations bodies and the advocacy work carried on by Indigenous groups and non-governmental organizations, Indigenous peoples worldwide are receiving increasing attention from their respective governments. However, although the First and Second World Conferences recognised Indigenous peoples' rights, racism and racial discrimination against Indigenous peoples remains prevalent.

Perhaps the most flagrant form of discrimination against Indigenous peoples has been witnessed during the adoption process of the Declaration on the Rights of Indigenous Peoples. Many state parties refuse to agree a text that refers to 'Indigenous peoples'. The controversy around the use of the term 'peoples' has drawn attention to the discriminatory orientation of state parties during the drafting process - all peoples are recognised as 'peoples', with the exception of Indigenous peoples. All major UN Instruments, including the Universal Declaration and the two Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, enshrine the rights of all peoples to freely determine their future. As Dr. Erica-Irene Daes, who has been the Chairperson-Rapporteur of the WGIP for a number of years, asks in her working paper The concept of 'indigenous people', why should Indigenous peoples, of all peoples, be excluded from enjoying this right, if it were not for discrimination on the basis of race alone? (E/CN.4/Sub.2/AC.4/1996/2)

Despite the rhetoric, the reality is that there are an estimated 300 million Indigenous peoples worldwide who are routinely subjected to varied and systematic forms of racial discrimination. The specific forms of racial discrimination that Indigenous peoples suffer include: the denial of their rights to traditional lands; the oppression of their cultures; and discrimination in access to social, economic and political rights. The UNWCAR offers an opportunity for Indigenous communities to voice their concerns and for the UN member states to address the issues facing them.

4. The case for a Commonwealth interest in Racism against Indigenous peoples

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, the Adivasis in India to the Orang Asli in Malaysia, and the Bushmen in Southern Africa to the Ik in Uganda, Indigenous peoples encounter intolerance and prejudice in their struggle for survival. A unique element inherent in the discrimination Indigenous peoples face is double discrimination - individually, for being an Indigenous person, and collectively, for belonging to peoples different from the more homogenous majority population, and for striving to retain their separate identity and culture.

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:

• we believe in the liberty of the individual under the law, in equal rights for all citizens regardless of gender, race, colour, creed or political belief, and in the individual's inalienable right to participate by means of free and democratic processes in framing the society in which he or she lives;
• we recognise racial prejudice and intolerance as a dangerous sickness and a threat to healthy development, and racial discrimination as an unmitigated evil;
• we oppose all forms of racial oppression, and we are committed to the principles of human dignity and equality.

At Harare, the Commonwealth member states also pledged to work with renewed vigour, concentrating especially in the following area:

• the protection and promotion of the fundamental political values of the Commonwealth:
  • 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 in the protection and promotion of equal 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 equal rights, can and should do more to combat racism and racial discrimination against Indigenous peoples. While other major international organisations have been working hard to define and protect Indigenous peoples' rights and cultures, and to combat racism and racial discrimination against them, the Commonwealth has remained apparently oblivious to the situation of its most vulnerable citizens - that is about one-third of the world's Indigenous population. 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. The Commonwealth has no philosophical statement that could encourage and support member states in formulating appropriate Indigenous policy at the local level.

While a number of Commonwealth countries have developed individually specific policies to combat racism and racial discrimination against Indigenous peoples, there remains no Commonwealth-wide commitment to eliminating racism and racial discrimination against 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, UK, to channel specific enquiry, advocacy or support.

In the Harare Commonwealth Declaration, the Heads of Government pledged their:

• support of the United Nations and other international institutions in the world's search for peace, disarmament and effective arms control; and in the promotion of international consensus on major global political, economic and social issues.

However, despite its commitment to support the UN and other international institutions in the promotion of international consensus on major global concerns, the Commonwealth is not collaborating sufficiently with the efforts of the United Nations and the International Labour Organisation in combating racism and racial discrimination against Indigenous peoples.

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. In their approaches to the Declaration at the 6th session, Commonwealth Government delegations can be divided into the following three blocs: those which support the adoption of some or all of the articles under discussion as drafted (Pakistan); those which support the principles contained in particular articles, but insist on amendments to the current text, (New Zealand, Bangladesh and Canada); and those which challenge fundamental principles underlying the Declaration, in particular, the concept of self-determination, language of Indigenous peoples and/or the recognition of collective rights (Australia and UK). The number of active Commonwealth state participants has decreased since the first session of the Working Group in 1995, with an increasing number of states registering as participants and remaining silent. The most active Commonwealth states at the 6th session were: Canada, New Zealand, and the UK. Bangladesh and Pakistan were far less active, while India and South Africa remained silent. Government delegations from Fiji, Kenya, and Nigeria, who participated in previous sessions, did not attend the 6th session.

Commonwealth member states must recognise Indigenous peoples as 'peoples' with the right to freely determine their own future, one free from discrimination on the basis of race and where all peoples are equal. In this context, they should reiterate the right of all peoples, including Indigenous peoples to self-determination. The denial of this right and the refusal to use the phrase 'Indigenous peoples' by some states is an outright form of racism and racial discrimination.

Many states deny Indigenous self-determination because they fear it will lead to the break-up of the nation-state. However, Indigenous self-determination can be recognised without threatening the territorial integrity of nation-states. The case of Nunavut, Canada, where the Inuit have been allowed the right to freely determine their own future, is an example of how some Commonwealth states are creatively responding to claims for Indigenous self-determination while preserving their territorial integrity.

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.

It is worth noting that while forty-one of the fifty-four Commonwealth member states have ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1965, there remain eleven states that have not, including: Brunei Darussalam, Dominica, Kenya, Kiribati, Malaysia, Nauru, Samoa, Singapore, Tanzania, Tuvalu, Vanuatu (Belize has signed but not acceded the ICERD and Grenada has signed but not ratified the ICERD.) This is unacceptable in the struggle to combat racial discrimination.

Commonwealth Governments must examine their constitutions, laws, legal systems, and policies to identify and eradicate both explicit and inherent racism or bias towards Indigenous peoples. This analysis must be included in reports to the ICERD for those countries which have signed the Convention or reports to the Sub-Committee on Prevention of Discrimination and Protection of Minorities for non-signatories. It should be noted that the norm of non-racial discrimination has now become part of international customary law and is therefore binding even to those states which have not ratified the ICERD.

While states parties to the ICERD are required to report on the fulfillment of their obligations every two years (states are requested to follow the reporting guidelines drawn up by the Committee), very few Commonwealth states report regularly. Those states that are torn apart by civil strife have an excuse for neglecting their reporting obligations. That obligation can also be demanding for the member states with small populations. Many of the Commonwealth member states have small populations and often find it difficult to carry out their reporting obligations. The international community must ensure that the Declaration and Programme for Action makes it is easier for small states to carry out such obligations.

Indigenous peoples have been discriminated against for centuries, from the arrival of the first colonisers in their lands to the current successors of these colonisers. Today, Indigenous peoples are facing a new form of racism in globalisation, with its imposition of the culture and system of the global capitalist market economy. The contemporary challenge for Indigenous peoples is how to make the broader society accept diversities in culture, cosmologies, and economic and political and social systems. Human diversity is increasingly being seen as a positive value. With the death or extinction of a community or language, the whole of humanity suffers. In its Harare Declaration, the Commonwealth Heads of Government reaffirmed that 'The special strength of the Commonwealth lies in the combination of the diversity of its members with their shared inheritance in language, culture and the rule of law.' However, the Commonwealth has yet to take seriously the significant contribution of Indigenous peoples to this diversity.

While Indigenous peoples contribute to the social, cultural and economic diversity of the Commonwealth, they also contribute to the biological diversity of the Commonwealth. In the Harare Declaration, the Commonwealth Heads of Government made a commitment to

• the protection of the environment through respect for the principles of sustainable development.

Indigenous peoples are increasingly being seen as the modern day curators of the ecological habitat. Indigenous peoples across the Commonwealth 'share a common understanding of the integral relationships between the human being, all life and all elements of existence' (CAIP, Charter, 1999). If Indigenous peoples are protected, it follows that the environment will also be protected. The resistance of Indigenous peoples against colonisation and globalisation is no doubt the main reason for the remaining cultural and biological diversity in the world today. But the very survival of this diversity is seriously threatened by the institutionalisation and pervasiveness of present-day racism and racial discrimination against Indigenous peoples. If the Commonwealth is serious about its commitment to protecting the environment, it needs to recognise the necessity of protecting Indigenous peoples from racism.

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 particular, their right to equality and freedom from racism.

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, racism and racial discrimination against Indigenous peoples arise in a great many of the Commonwealth countries. Indigenous peoples in the Commonwealth have suffered centuries of discrimination, particularly after the arrival of the first European colonisers. When the Europeans landed in what were considered 'unoccupied' lands, they proceeded to either ignore or deny the existence of the peoples already living on those lands. By various means, they divested the Indigenous peoples of their lands and territories, and thus began a process of discrimination perpetrated by their successor-states to this day.

As the Commonwealth Association of Indigenous Peoples (CAIP) states in its Charter, (1999):

'The past European colonisation of the peoples of the world is the main historical factor which has deprived the Indigenous Peoples of their human rights. In general, Indigenous Peoples have not yet achieved freedom from colonisation'The Commonwealth has developed as a structure which is based upon the recognition of all peoples to self-determination. While independent nation-states have succeeded British colonies, aspects of the geographic boundaries, laws and political structures may bear inescapable legacies of former colonial rule. In this aspect, little progress has been made within the Commonwealth to identify, acknowledge and protect the rights of the Indigenous Peoples.'

This process of colonisation provided the foundation for state discrimination against Indigenous peoples which continues to this day and is manifested in a number of ways. A key element in this process is land. Indigenous peoples have a strong relationship with their land, a characteristic shared by all Indigenous peoples. They are dependent on their lands not only for their economic survival, but also their spiritual survival; without their lands they cannot survive. The proposed resettlement of the Jarawa of India's Andaman Islands, who number no more than 400 people, may signal the end for this tribe. One can also witness the devastating effects of land dispossession and the resulting loss of identity and self-worth in the reservation system imposed on the Native Americans.

Different mechanisms and tools have been devised to take the land away from Indigenous peoples. All are inherently discriminatory against Indigenous peoples. They include: development projects such as the building of roads, (Guyanese Amerindians have been struggling hard to stop the construction of a road through the centre of their traditional lands); the construction of dams, (most of the dams in India, over 3,000, are located in Adivasi/tribal areas); the construction of oil pipelines, (the Bagyeli in the Cameroon are fiercely opposing the construction of an oil pipeline that will cut through their ancestral lands); deforestation programmes (the Ogiek are challenging the Kenyan government over the theft and destruction of their forest homelands, and the Maya people are struggling to preserve their land rights and to protect the rainforest from the depredations of logging companies in Belize); afforestation programmes and the creation of natural parks (the Basarwa/Bushmen and Bakgalagadi peoples in Botswana 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, and the Wanniyala-Aetto (Veddah) in Sri Lanka who were evicted from their traditional habitat to make way for the Madura Oya National Park and who are fast being assimilated into the majority community); and mining and processing projects (the tribal people in the Rayagada district of Southern Orissa, India, have met with violent deaths in their opposition to the mining and processing of bauxite in their traditional homelands, and the Mirrar people in the Northern Territory of Australia are actively opposing the location of an uranium mine in Jabiluka, in the Kakadu National Park.)

What is apparent is that many such programmes are aimed at national development, yet carried out to the detriment of Indigenous peoples. It is rare that any of these programmes benefit Indigenous peoples, yet they always have to pay the costs, which are often high in both economic and social terms. It is clear that many national development programmes and policies are discriminatory. In India, over 10 million Adivasis have been displaced in the post-colonisation era to make way for development projects such as dams, mining, industries, roads and protected areas, etc. While the majority of dams built in India are located in Adivasi/tribal areas, only 19.9% (1981) of Adivasi landholdings are irrigated, as compared to 45.9% of all holdings of the general population

As land is their main source of income and livelihood, this continuing erosion of their land rights is the major cause of the current impoverishment of Indigenous peoples. In most countries where Indigenous peoples are in the minority, they are among the poorest and most disadvantaged segment of the national population, with the lowest levels of income, poor housing, and with problems in health and sanitation, etc. The number of hospitals and health centres in Indigenous areas is often lower than in other areas in the country, e.g., in the Chittagong Hill Tracts, Bangladesh. The average life expectancy of Aborginal men and women in Australia is 55.6 and 63 years respectively. The national Australian averages are 76.2 and 81.8 respectively (1996 Census).

Another area in which Indigenous peoples often face discrimination is education. This has two components, one being that Indigenous peoples often face discrimination in access to educational facilities (in rural areas of Australia, many secondary schools are located more than 100 kms from Aboriginal communities), this results in poor educational achievement (23.03% of Scheduled Tribes/Adivasis in India were literate as opposed to 42.83% of the general population, as of 1991), and the other being that most national educational programmes and curricula are devised without taking into account the special characteristics and needs of Indigenous peoples. The medium of instruction is often the national language, as in Botswana, where the Basarwa /Bushmen children are rarely taught in their own languages. In addition, it is rare that school textbooks include any references to the Indigenous peoples of the country, or to their culture and traditions. This is often the case in Canada, where for the Innu children the focus is on an interpretation of history that may differ from theirs. This can cause Indigenous children to feel that they are not part of the national society, a factor compounded by teachers who are not familiar with Indigenous cultures and thus do not attempt to incorporate this element into their teaching methods. The end result is that many Indigenous children feel marginalised, and leave school prematurely without completing their studies. Those that do continue often face discrimination in accessing institutions of higher education.

Another element is the prejudice Indigenous people often face when applying for jobs, and the problems of gaining access to higher positions. As is the case still for many women, Indigenous peoples too often encounter the glass ceiling when it comes to promotion. In many countries, Indigenous people often occupy the most menial posts, facing little prospect of promotion or a more respectable and higher paid job (despite the Bonded Labour Abolition Act of 1976, Adivasis/tribals still form a substantial percentage of bonded labour in India). This is exacerbated by the discrimination they face in the job market, including in the recruitment process. All these factors contribute to the high unemployment rates among Indigenous peoples when measured against the national average. In Australia the unemployment rate among Aborigines is approximately 23%, compared with a national average of 7% (Australian Bureau of Statistics, 2000). Many Indigenous peoples are often self-employed or engaged in traditional occupations such as hunting and fishing, weaving, basketry, animal husbandry and subsistence agriculture.

As a result of institutionalised state discrimination against Indigenous peoples, in many countries Indigenous peoples also suffer from racial prejudice. Indigenous peoples are often stereotyped by the majority community as primitive, unclean, and unable to take care of themselves and by a variety of other derogatory labels. In Sri Lanka, for example, the phrase 'Veddah' is sometimes applied to someone bad mannered and aggressive.

Indigenous peoples that are still engaged in hunting and gathering, are popularly viewed as backward and unprogressive and are often seen as impediments to economic development. This can result in official intimidation and violence. More than half of all Adivasis in India depend on forest produce, yet much of the traditionally occupied forest is now categorised as reserved and protected. As a result, very commonly, police, forest guards and officials bully and intimidate Adivasis who continue to hunt and gather and large numbers are routinely arrested and jailed, often for petty offences.

Indigenous peoples are often the victims of official violence. They are routinely seen as scapegoats for crimes committed. For example, in Australia, Aborigines are over-represented in criminal prosecutions. While Indigenous people constitute around 2% of Australia’s population, the proportion of imprisoned Aborigines is several times as high. Aboriginal youths are often arrested if there is mere suspicion that a crime has been committed.

5. UNWCAR outcomes

The forthcoming UNWCAR is potentially of great significance to the Indigenous peoples of the world. The climax of the World Conference will be the adoption of a Declaration and Programme for Action. The High Commissioner for Human Rights, Ms. Mary Robinson, as Secretary-General of the Conference, has been invited to draw up a Draft Declaration and Programme of Action for consideration by the Conference. This is to be based on the regional preparatory meetings and seminars, and on the suggestions of UN member states, specialised agencies, treaty bodies and concerned NGOs.

Indigenous groups and concerned NGOs have lobbied hard to include the issue of Indigenous peoples on the WCAR agenda and to ensure that the Declaration and Programme for Action include commitments to addressing racism against Indigenous people.

The UNWCAR offers an opportunity for the 54 Commonwealth member states to realise the full human rights of Indigenous peoples. In the final section of its Charter, 1999, CAIP states:

'Indigenous Peoples are entitled to the protections of the Universal Declaration on Human Rights and all other relevant international standards of human rights.

The Commonwealth Family upholds these standards and undertakes to further develop human rights instruments and programmes of actions which may be observed within the Commonwealth.

Through the informed, resourced participation of the Indigenous Peoples, and through the exercise of the Commonwealth commitments to promote human rights for all peoples of the Commonwealth, the Indigenous Peoples of the Commonwealth must have reason to believe that appropriate and timely action is being taken within the Commonwealth to eliminate the common injustices and racial discrimination that is inflicted upon them.'

This Memorandum calls upon the Commonwealth Government delegations to the UNWCAR to finally make amends for the racism and racial discrimination that has been and continues to be perpetrated against Indigenous peoples within Commonwealth countries. It urges the Commonwealth Government delegations to seek, both individually and collectively, the following outcomes from the 2001 UN World Conference:

• Greater recognition of the racism and racial discrimination against Indigenous peoples.
• Recognition of 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 reiterate the right of all peoples, including Indigenous peoples to self-determination.
• Recognition of the need to take specific action against racism and racial discrimination against Indigenous peoples, such as:
  • Adopting a Declaration and a Platform for Action that is comprehensive and practical, and includes the rights of Indigenous peoples within its framework, but also ensures there is monitoring of the implementation of the commitments undertaken at this meeting.
  • Ensuring that a World Conference on Indigenous Peoples is convened before the end of the International Decade of the World's Indigenous Peoples in 2004.
  • Acceding to or ratifying existing international human rights conventions, including the ICERD.
• A commitment from the international community to review national and international policies that adversely affect Indigenous peoples, such as:
  • Recognising the need to protect the rights of Indigenous peoples to their lands and territories and their resources.
  • 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 are racist and discriminatory.
  • 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 UNWCAR Declaration calling on 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.

6. CHOGM 2001

It is important that the adopted Declaration and Programme of Action includes the rights of Indigenous peoples within its framework, and that the Commonwealth Heads of Government, at their meeting in Brisbane, in October 2001, follow up progress made at the UNWCAR with further commitments to combating racism against Indigenous peoples.

The CPSU urges the Commonwealth to recognise the special situation of Indigenous and tribal peoples in its human rights policy. The Unit calls on the Commonwealth to acknowledge their marginalisation, their vulnerability and the legitimacy of their goals of distinct group survival. The Unit urges the Commonwealth Governments to include support for Indigenous rights in the revised Harare Commonwealth Declaration.

In its submission to the CHOGM, Brisbane, October 2001, the CPSU will reiterate its concern for Indigenous peoples, and call on Commonwealth member states to protect their rights, in particular, their right to equality and freedom from racism.

Dr. Helena Whall
Indigenous Rights in the Commonwealth Project Officer
Commonwealth Policy Studies Unit
August 2001

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 in July 1999 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 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 a three- year research and advocacy project on Indigenous rights issues in the Commonwealth.

2. Staff and Advisers

Richard Bourne, Head of CPSU, is the Director of the Project, and is responsible for a two-year project funded by the Department for International Development (DfID), 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 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.

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. This will 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 twelve to fifteen Indigenous representatives and other experts from the different regions will participate. Each participant will be expected to present a paper on an issue of concern to his/her Indigenous group. These papers will be collated and published in an edited volume at the end of the project. Four regional Indigenous consultants will be identified to assist in the preparation of these expert meetings.
• 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. It will also present its findings to the UN World Conference on Racism, to be held in September 2001 in Durban, South Africa and 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.