Dialogue Between Nations: Point of View

Note: The revisions suggested below are an initial response to the “Consolidated Text of the Draft Declaration Prepared by the Chair of the Working Group”, OEA/Ser.K/XVI, GT/DADIN/doc.139/03, 17 June 2003 (hereafter “Chair’s Consolidated Text”). As highlighted in its “Introduction”, the Consolidated Text “has not been subject to consultations or negotiation”. It has not been approved by the any entity within the OAS, member States or Indigenous peoples. In our respectful view, it has no preferred or legal status.

The OAS General Assembly has indicated that a “final phase of negotiations” would start from the Chair’s Consolidated Text. As numerous Indigenous peoples and organizations have emphasized to date, this approach raises a host of basic problems and concerns. In particular, Indigenous representatives have not finished analyzing and discussing the IACHR Proposed Declaration on the Rights of Indigenous Peoples.

It is critical that Indigenous representatives from all regions of the Americas have full and effective participation at all stages of the OAS standard-setting process relating to Indigenous peoples’ status and rights. States have no legitimate mandate to “negotiate” our human rights – especially when these negotiations are defined as “exclusively” among themselves.

Further, any Declaration proposed or adopted by the OAS must fully respect the Purposes and Principles of the Charter of the United Nations. Therefore, any existing draft provision or suggested change by States or other participants in the standard-setting process that would fail to wholly respect the prohibition against racial discrimination or would otherwise undermine the human rights of indigenous peoples must be firmly rejected. As our revisions make clear, the Chair’s Consolidated Text does not currently adhere to these crucial standards.

The common objective is to ensure that the rights of Indigenous peoples affirmed in any OAS Declaration constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the Americas. In no case should these standards fall short of those in the draft United Nations Declaration on the Rights of Indigenous Peoples (hereafter “draft U.N. Declaration”).

The OAS Declaration should also be fully compatible with the status, rights and aspirations of indigenous peoples, e.g. as reflected in the Declaration of the Indigenous Peoples Summit of the Americas, 2001.

The title of Section Three – “Cultural Identity” does not appear to be sufficiently broad to comprehensively include the subject matters in this Section. For example, health, education and environmental matters have important cultural aspects relating to Indigenous peoples, but these issues include more than cultural considerations.

It is proposed that the rights in this draft Declaration be reorganized in the future. We would recommend that social, economic and cultural rights be grouped together. An additional grouping should include environment and development and land and resource rights.

We propose Art. XII of the Chair’s Consolidated Text be more accurately entitled “Right to cultural integrity” (not cultural “identity”).

1a. The right of indigenous peoples to cultural integrity is profoundly interrelated with the protection, use, and management of their territories, lands, resources and environment, and with biodiversity and sustainable development.

This proposed new para. makes clear that the right of Indigenous peoples to cultural integrity does not exist in a vacuum. Rather it is interrelated with our lands, resources, environment, etc.

See, for example, Declaration of the Indigenous Peoples Summit of the Americas, 2001, para. 31: “The knowledge and culture of Indigenous Peoples cannot be separated from our unique spiritual and physical relationship with our lands, waters, resources and territories.”

Kimberley Declaration, International Indigenous Peoples Summit on Sustainable Development, Khoi-San Territory, Kimberley, South Africa, 20-23 August 2002: “… we have a distinct spiritual and material relationship with our lands and territories and they are inextricably linked to our survival and to the preservation and further development of our knowledge systems and cultures, conservation and sustainable use of biodiversity and ecosystem management.”

U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment: Final Report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur, 6 July 1994, para. 77: “… removal from or destruction or degradation of traditional lands inevitably leads to serious loss of life and health and damage to the cultural integrity of indigenous peoples.”

I/A Court H.R., Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, Ser. C No. 76 (2001), at para. 149: “…the close relationship that the communities have with the land must be recognized and understood as a foundation for their cultures, spiritual life, cultural integrity and economic survival.”

World Conference on Sustainable Development, Plan of Implementation, adopted in Johannesburg, South Africa, 5 September 2002, at para. 42: “Biodiversity, which plays a critical role in overall sustainable development and poverty eradication, is essential to our planet, human well-being and to the livelihood and cultural integrity of people.”

Agenda 21: Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, c. 26, para. 1: “In view of the interrelationship between the natural environment and its sustainable development and the cultural, social, economic and physical well-being of indigenous people …”

1. Indigenous peoples have the right to their cultural integrity and to their ~~historical and ancestral~~ heritage, which are important for their collective continuity, and for their distinct identity and that of their citizens.

The effective protection of the heritage of the indigenous peoples of the world benefits all humanity. Its diversity is essential to the adaptability, sustainability and creativity of the human species as a whole.

It is suggested that the description of heritage as “historical and ancestral” in para. 1 of the Chair’s Consolidated Text be deleted. Such a description may serve to inaccurately limit the nature and scope of Indigenous peoples’ heritage to our past.

See, for example, "Principles and Guidelines for the Protection of the Heritage of Indigenous People", in U.N. Sub-Commission on the Promotion and Protection of Human Rights, Report of the seminar on the draft principles and guidelines for the protection of the heritage of indigenous people, 2000 (Chairperson-Rapporteur: Ms. Erica-Irene Daes), Annex I, para. 12:

The heritage of indigenous peoples has a collective character and is comprised of all objects, sites and knowledge including languages, the nature or use of which has been transmitted from generation to generation, and which is regarded as pertaining to a particular people or its territory of traditional natural use. The heritage of indigenous peoples also includes objects, sites, knowledge and literary or artistic creation of that people which may be created or rediscovered in the future based upon their heritage.

Similarly, see T. Simpson, Indigenous Heritage and Self-Determination: The Cultural and Intellectual Property Rights of Indigenous Peoples, (Copenhagen: IWGIA, 1997), at p. 20.

It is also proposed that a second new para. be added, indicating that the heritage of indigenous peoples is beneficial to all humanity (and not solely “their States”). The new wording reproduces Principle 1 of the "Principles and Guidelines for the Protection of the Heritage of Indigenous People", supra.

2. Indigenous peoples have the right to restitution of cultural, intellectual, religious and spiritual, and other property taken without their prior, free and informed consent or in violation of their laws, traditions and customs. Where restitution is not possible, they have the right to equitable and fair compensation.

The proposed revision is consistent with the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 12. For greater certainty, it is important to specify the range of property that is contemplated by this para. The suggested changes in wording would clarify what criteria constitute “dispossession”.

See also U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Populations: Vol. V, Conclusions, Proposals and Recommendations, (1986) (J. Martínez Cobo, Special Rapporteur), para. 513: “Indigenous peoples have a natural and inalienable right to keep the territories they possess and to claim the lands which have been taken from them. In other words, they are entitled to the natural and cultural patrimony contained in the territory and to determine freely how to use it and benefit from it.”

3. The States shall guarantee respect for and non-discrimination against the indigenous ways of life, world views, usages and customs, traditions, forms of social, economic and political organization, institutions, practices, beliefs, values, dress, and languages.

U.N. Committee on the Elimination of Racial Discrimination, General Recommendation XXIII (51) concerning Indigenous Peoples, para. 4 a: “4. The Committee calls in particular upon States parties to: 

a. recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation …”

The proposed new title for Art. XIII more accurately reflects its contents. “Language” is not specifically referred to in the title, since it is universally accepted as an integral part of “culture”.

1. Indigenous peoples have the right to, use, develop, revitalize and transmit to future generations their own histories, languages, oral traditions, philosophies, systems of writing and literature; and to designate and retain their own names for communities and places. The States shall adopt adequate measures to protect the exercise of this right, in conjunction with the peoples concerned.

Para. 1 of the Chair’s Consolidated Text is consistent with the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 14. See also Declaration of Principles of International Cultural Cooperation, UNESCO, 1966, para. 1:

In regard to the second sentence of para. 1 of the Chair’s Text, we propose that States’ actions to safeguard Indigenous peoples’ cultural rights should be devised and implemented in “conjunction” with the peoples concerned. Based on countless past experiences, “consultation” by State governments is too often sorely inadequate and not carried out in good faith.

1a. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, sports, technologies and visual and performing arts and literature.

Indigenous children have the right, collectively and individually, to enjoy their own culture, to profess and practise their own religion or spirituality, and to use their own language.

See also Declaration of the Indigenous Peoples Summit of the Americas, 2001, para. 2: “These fundamental rights must include … c) Respect and protection of our sacred cultural and ceremonial sites; d) Protection of our heritage, and our intellectual and cultural property rights …”

In regard to Indigenous sports, they are a past and ongoing manifestation of Indigenous peoples’ spirituality, identity and culture. An example of international renown is lacrosse, which is now also widely played by non-Indigenous people. In reference to sports as a human right, see, for example, International Olympic Committee, Olympic Charter, in force 29 November 2002, p. 9, Principle 8: “The practice of sport is a human right. Every individual must have the possibility of practising sport in accordance with his or her needs.”

2. The States shall take measures to promote the broadcast of radio and television programming by the mass media in indigenous languages in regions with a substantial indigenous presence. The States shall also support the creation of indigenous radio stations and other means of communication.

It is proposed that the term “large” be replaced by “substantial”. Indigenous and non-Indigenous perspectives as to what is “large” would likely be very different. “Substantial” can suggest an important or valuable presence without being “large” in non-Indigenous terms.

In regard to para. 2 of the Chair’s Text, see Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War, UNESCO,1978, para. 2: “… it is important that the mass media be responsive to concerns of peoples and individuals, thus promoting the participation of the public in the elaboration of information.”

3. The States shall take effective measures so that indigenous peoples and individuals can understand administrative, judicial, and political rules and procedures, and be understood in such proceedings.

3a. The States shall make the necessary efforts for the indigenous languages to be established as official languages at least in the areas where indigenous languages predominate or are used as extensively as any existing official language.

It is proposed that para. 3 of the Chair’s Consolidated Text be revised so as to apply to both Indigenous peoples and individuals. Both peoples and individuals may be directly involved or affected by administrative, judicial and political rules and procedures. Indigenous peoples participate in such proceedings through mandated leaders or representatives.

The first and second sentences in para. 3 of the OAS Proposed Declaration address separate (though overlapping) issues. It is proposed that the second sentence in para. 3 be placed in a separate para. 3a.

It is proposed that, where an Indigenous language in a particular area is used as much as any existing official language, then such Indigenous language should be made an official language at least in the area concerned. Official languages in some countries, such as Canada, are not limited to the area where an official language predominates.

1a. Indigenous peoples have the right to have the dignity and diversity of their cultures, traditions, histories and aspirations appropriately reflected in all forms of education and public information.

It is proposed to include a right of Indigenous peoples that corresponds to the obligation of States in para. 1 of Art. IX of the Chair’s Consolidated Text. The new proposed para. reflects the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 16.

Educational measures shall be taken among all sections of the national community, and particularly among those that are in most direct contact with the peoples concerned, with the object of eliminating prejudices that they may harbour in respect of these peoples. To this end, efforts shall be made to ensure that history textbooks and other educational materials provide a fair, accurate and informative portrayal of the societies and cultures of these peoples.

1. The States shall include in their national educational systems content that fairly and accurately reflects the diversity of the histories and cultures of Indigenous peoples and the intercultural, multiethnic, and multilingual nature of State societies. The indigenous peoples have the right to bilingual intercultural education that incorporates their own world view, history, knowledge, values, spiritual practices, and ways of life.

It is insufficient to refer simply to the “intercultural, multiethnic, and multilingual nature” of State societies. As “peoples”, Indigenous peoples constitute more than these categories would suggest.

The States shall take the necessary measures to ensure that the indigenous education systems guarantee equal educational opportunity and teachers for the general population and complementarity with the national educational systems.

The proposed revisions to this para. are consistent with the right of indigenous peoples under the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 15 (right to all levels and forms of education) and Art. 31 (self-determination regarding education); Convention on the Rights of the Child, Art. 28 (right of child to education); the Indigenous and Tribal Peoples Convention, 1989, Art. 26 (education at all levels); the International Covenant on Economic, Social and Cultural Rights, Art. 13 (right to education); and the international human rights Covenants, Art. 1 (self-determination).

In regard to the second sentence in para. 2, it is proposed that the terms “define” and “implement” be replaced with “establish, operate and control”. One does not “implement” institutions and facilities. The term “control” is consistent with Indigenous peoples’ self-determination in education.

It is proposed that the para. concerning State measures be deleted, since it introduces detail that would be more appropriately addressed in other ways outside the Declaration.

3. The States are committed to the principle of equality of opportunity in education and to reducing disparities between Indigenous and non-Indigenous people, so that the indigenous educational systems may provide similar levels of quality, programs, and accessibility as those provided for the general population. In addition, the States shall facilitate access for indigenous children who live outside of their communities to learning in their own languages and cultures.

As currently drafted, the first sentence of para. 3 of the Chair’s Text could be interpreted that, in order to fulfill their “guarantee”, States would have far-reaching powers to interfere in indigenous education systems. Therefore, we propose revisions that would commit States to the principle of equality of opportunity in education and to reducing disparities between Indigenous and non-Indigenous people.

In view of the diversity among Indigenous and non-Indigenous education systems, it would appear to be more appropriate to require that the levels of quality, etc. provided be “similar” rather than the “same”.

In regard to indigenous children who live outside of their communities learning their own languages and cultures, the Chair’s Consolidated Text includes the States’ obligation to “facilitate access”. In contrast, in the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 15, para. 2, Indigenous children have the right “to be provided access”.

4. The States shall take measures to guarantee for the members of the indigenous peoples education of equal quality as for the general population at all levels. The States shall adopt effective measures to provide adequate resources for these purposes.

It is proposed that para. 4 of Art. XIV of the Chair’s Text be deleted. The commitment to education of equal quality is already addressed in para. 3 above, in a manner that would not potentially allow State interference with the education jurisdiction of Indigenous peoples.

It is suggested that para. 5 of the OAS Proposed Declaration be deleted and replaced with the two new proposed paras. that would apply to the whole Declaration. The following new paras. should be added to Section Six: - “General Provisions”:

Indigenous peoples have the right to financial and technical assistance from States and through international cooperation, to pursue freely their political, economic, social, cultural and spiritual development, and for the enjoyment of the rights and freedoms recognized in this Declaration.

In no case shall any State diminish, withdraw or deny such basic assistance to indigenous peoples as a means of compelling these peoples to alter their freely and democratically expressed opinions or positions concerning their fundamental human rights.

It makes little sense to limit express provisions for assistance by States to education matters. In view of the dire situation faced by Indigenous peoples throughout the Americas, assistance should expressly be contemplated in respect to all of our fundamental human rights in the Declaration. This assistance should be available through international cooperation, as well as at the national level. The wording in the first proposed para. reflects the draft U.N. Declaration, Art. 38.

The second proposed para. addresses the ongoing problem where States reduce, withdraw or deny assistance, as a means of penalizing Indigenous peoples for asserting or protecting our basic human rights.

See also Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, 8 March 1999, Annex, Art. 12: “... 2. The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.”

It is proposed to revise the title of Art. XV, so as to more accurately refer to “other rights and freedoms” rather than solely “freedom of conscience”.

1. Indigenous peoples and individuals have the right to freedom of expression, conscience, spirituality, religion and belief, and to express them both in public and in private, individually or collectively.

The proposed revision ensures that rights and freedoms in para. 1 of Art. XV of the Chair’s Consolidated Text apply to all Indigenous individuals (not only those who are “members” or “citizens” of an Indigenous people).

For a similar provision to para. 1 of Art. XV of the Chair’s Text, see Draft American Declaration on the Rights of Indigenous Peoples – Working Document Comparing the Original Draft of the Inter-American Commission on Human Rights, Proposals by States and by the Indigenous Representatives, as well as the Proposed Draft by the Chair of the Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples, 9 January 2002, p. 29, Art. X.1.

2. The States shall take the necessary measures to prohibit efforts to convert or otherwise alter the spiritual or religious beliefs of indigenous peoples or individuals without their prior, free and informed consent.

The proposed revision ensures that rights and freedoms in para. 2 of Art. XV of the Chair’s Consolidated Text apply to all Indigenous individuals (not only those who are “members” or “citizens” of an Indigenous people).

If Indigenous consent is first obtained, then a belief has not been “imposed”. Therefore, we propose that the term “imposed” be replaced with “otherwise alter”.

The proposed addition of “prior” to “free and informed consent” would serve to ensure that Indigenous consent is obtained in a timely manner.

3. Indigenous peoples have the right to maintain and protect their cultural and religious properties, including burial and other sacred sites and the human remains, relics and artifacts found at such sites.

The States shall adopt the necessary measures, ~~in consultation with the indigenous peoples,~~ to preserve, respect, and protect the sacred sites and objects of indigenous peoples, including their burial grounds, human remains, and relics.

It is essential to first affirm the cultural and religious properties of Indigenous peoples. The proposed new para. is consistent with the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 13.

See also Kimberley Declaration, International Indigenous Peoples Summit on Sustainable Development, Khoi-San Territory, Kimberley, South Africa, 20-23 August 2002: “We maintain the rights to our sacred and ceremonial sites and ancestral remains, including access to burial, archaeological and historic sites.”

In regard to the adoption by States of necessary measures of preservation, etc., it is proposed that the reference to “consultation” be deleted. The key issue of Indigenous peoples’ input and participation should be addressed in terms of the implementation of the whole Declaration under Section Six -  ”General Provisions”. In this regard, we propose the following:

For matters relating to indigenous peoples’ human rights, States’ obligations, implementation of this Declaration, and related reforms, indigenous peoples have the right to full, direct and effective participation at the international and national levels. Procedures shall be devised in conjunction with indigenous peoples, so as to ensure that any measures adopted are with the prior, free and informed consent of the peoples concerned.

4. The States and their institutions shall guarantee that society as a whole respect the integrity of indigenous symbols, practices, sacred ceremonies, expressions, and ~~spiritual~~ protocols.

The proposed revision would ensure that measures taken by States would not be limited to Indigenous protocols that were of a “spiritual” nature.

1. The indigenous family shall be respected and protected by society and the State. The State shall recognize the various indigenous forms of family, particularly the extended family, matrimonial union, filiation, family name, and all other rights of the indigenous family. These indigenous forms of family organization shall be respected by public and private persons, including cooperation and development agencies. In all cases, the criteria of gender and generational equity shall be recognized and respected.

In regard to the last sentence of para. 1 of Art. XVI of the Chair’s Consolidated Text, it is unclear what is the desired purpose or intention. Further discussion of the criteria highlighted would be beneficial.

1a. The widest possible protection and assistance shall be accorded to the Indigenous family, particularly for its establishment and while it is responsible for the care and education of dependent children.

The proposed new para. 1a reflects the International Covenant on Economic, Social and Cultural Rights, Art. 10, para. 1. It is crucial for States to provide such protection and assistance to the Indigenous family, especially in view of the past or ongoing damage caused in this context by many States.

2. In matters related to the adoption of indigenous children, severance of the ties, and all other actions concerning indigenous children, the best interests of the child shall be a primary consideration.

States, courts and other relevant institutions shall respect the responsibilities, rights and duties of parents, members of the extended family or community, legal guardians or other persons legally responsible for the child, as provided for by indigenous peoples’ own customs, practices or laws. The indigenous institutions have primary jurisdiction for determining custody and other family issues relating to indigenous children.

These parents or other persons with legal responsibility shall provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of his or her fundamental human rights.

The proposed revisions to the first sentence of para. 2 of Art. XVI of the Chair’s Consolidated Text reflect the Convention on the Rights of the Child, Art. 3, para. 1: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” The proposed new wording addresses State, court, etc. obligations in respect to all actions concerning indigenous children, and not solely determinations of their “best interest”.

In regard to our additional proposed revisions, we have highlighted the duty to “respect” the responsibilities, rights, and duties of parents, etc. and Indigenous peoples’ “customs, practices or laws”. It is insufficient to simply “take into account” these essential aspects. Our suggested revisions are wholly consistent with the Convention on the Rights of the Child, Art. 5:

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

See also the draft U.N. Declaration on the Rights of Indigenous Peoples, 11^th preambular para.: “Recognizing … the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children … ”

In regard to the Indigenous institutions’ primary jurisdiction for determining custody, etc. of Indigenous children, it is proposed that “shall have” in the Chair’s Text be replaced with “have”. Use of “shall have” could imply that Indigenous peoples’ right to address family-related matters through our own institutions is not an inherent right.

1a. Indigenous peoples have the collective and individual right to the enjoyment of the highest attainable standard of physical and mental health.

The right to health embraces a wide range of socio-economic factors that promote conditions in which indigenous peoples and individuals can lead healthy lives. Underlying determinants of health include food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, access to recreational activity and sport, and a healthy environment.

We are proposing a new para. 1a for Art. XVII of the Chair’s Consolidated Text. Our revisions reflect the International Covenant on Economic, Social and Cultural Rights, Art. 12; and the Indigenous and Tribal Peoples Convention, 1989, Art. 25.

See also Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health, adopted 11 May 2000, para. 4:

… the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.

United Nations Development Program, Human Development Report 2000, at p. 76: “Many studies have documented the causal links between food, nutrition, housing, sanitation, health care and education.”

It is also important to note our reference to “recreational activity and sport”. Sports, especially Indigenous sports, are highly important to the health, culture, and well-being of our people: see, e.g., Canadian Broadcast Corporation, “Lacrosse in Nunavut”, The National, Peter Mansbridge, Canada, March 3, 2003 (transcript) (positive health and social impacts relating to Inuit youth).

In regard to sports and health, see E.G. Krug, et al., eds., World Report on Violence and Health (Geneva: World Health Organization, 2002), p. 44: “Extracurricular activities – such as sports and recreation … – can provide adolescents with opportunities to participate in and gain recognition for constructive group activities”.

1. Indigenous peoples have the right to the exercise and legal recognition of their traditional and other indigenous medicine, pharmacopoeia, health practices and promotion, including those aimed at prevention and rehabilitation. They have the right to use, maintain, develop, administer and control their own health services, in accordance with their traditions, customs and practices~~; all in accordance with internationally recognized standards~~.

This para. 1 of Art. XVII, as revised, is consistent with the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 24, para. 1. The right to Indigenous medicine, health practices, etc. should not be limited to traditional forms, since Indigenous peoples customs and practices are of a dynamic nature and continue to adapt and change.

See also Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health, adopted 11 May 2000, para. 27: “… indigenous peoples have the right to specific measures to improve their access to health services and care. These health services should be culturally appropriate, taking into account traditional preventive care, healing practices and medicines.”

The notion of Indigenous “control” over our own health services is consistent with the international human rights Covenants, Art. 1 (self-determination); and the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 31 (self-determination regarding health).

It is proposed that Indigenous customs, practices, etc. in relation to health should not be made subject to internationally recognized standards. Such standards are in the process of being developed or appropriately altered with Indigenous input. Therefore, it would be premature and unfair to use existing standards as a limitation on Indigenous peoples’ rights.

2. Indigenous peoples have the right to the use and protection of the plants, animals, and minerals for medicinal use in their ancestral lands and territories, for such purposes as the research, development and practice of indigenous medicine.

This para. 2 of Art. XVII of the Chair’s Text is consistent with the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 24, para. 1. However, it is proposed that the last phrase not limit Indigenous peoples’ use to the “practice of indigenous medicine”. Other purposes, such as Indigenous research and development, are also essential.

3. The States shall take measures to prevent indigenous peoples from being subject to programs of biological or medical experimentation without their prior, free and informed consent.

As our revision suggests, in the context of biological or medical experimentation, the notion of “prior” consent is especially crucial.

4. Indigenous peoples have the right to use, without any discrimination whatsoever, all the health and medical care institutions and services accessible to the general population. The States shall promote an intercultural approach in the medical and health services provided to indigenous persons, including the formation of indigenous technical and professional health care personnel.

This para. 4 of Art. XVII of the Chair’s Text is consistent with the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 24, para. 2 (non-discriminatory access to health services, etc).

5. The States shall provide the necessary resources and other means for the indigenous peoples to improve the health conditions in their communities so as to ensure equality with the standards accepted for the general population. Ill-conceived development-related activities and other actions that have a deleterious effect on the health of Indigenous people shall be avoided.

The proposed revisions to para. 5 of Art. XVII of the Chair’s Text highlight the need for resources in addressing the urgent and long-standing health conditions in most Indigenous communities.

The specific obligation of States to provide resources is also provided in the Indigenous and Tribal Peoples Convention, 1989, Art. 25.

The suggested revisions also strengthen the requirement of equal standards with the general population. In addition, States are to refrain from future actions that would inflict additional adverse health effects on Indigenous people.

See, e.g., the Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health, adopted 11 May 2000, para. 27: “… in indigenous communities, the health of the individual is often linked to the health of the society as a whole and has a collective dimension. In this respect, the Committee considers that development-related activities that lead to the displacement of indigenous peoples against their will from their traditional territories and environment, denying them their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious effect on their health.”

See also Geneva Declaration on the Health and Survival of Indigenous Peoples, adopted at the International Consultation on the Health of Indigenous Peoples, organized by the World Health Organization, Geneva, 23-26 November 1999, Part IV, “The health of Indigenous Peoples is overwhelmingly affected by determinants outside the realm of the health sector, namely social, economic, environmental and cultural determinants. These are the consequences of colonization …”

Declaration of Machu Picchu on Democracy, the Rights of Indigenous Peoples and the Fight Against Poverty, Lima – Machu Picchu, July 28-29, 2001, para. 7: “…we firmly support every effort to promote and safeguard the rights and fundamental freedoms of indigenous peoples, including: … the right not to be displaced, as peoples, and moved from their lands …”

In regard to state responsibility, see also Committee on the Elimination of Racial Discrimination, General Recommendation XXIII (51) concerning Indigenous Peoples, para. 3: “… 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 jeopardized.”

1. Indigenous peoples have the right to live in harmony with nature and to a healthy and safe environment, which are essential conditions for enjoyment of the right to life, to their spirituality, and to collective well-being.

We support, as drafted, para. 1 of Art. XVIII of the Chair’s Consolidated Text. In view of the profound relationship that Indigenous peoples have with their territories, lands, resources and environment, it is vital to affirm our right to a safe and healthy environment. See generally Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social And Cultural Rights, Art. 11:

See Human Rights and the Environment: Final report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur, 6 July 1994, para. 242:

Although only a few instruments of a binding legal character have established a direct link between the environment and human rights, the regional and international human rights bodies are developing a practice whereby the procedural bases for enforcing the right to a satisfactory environment are becoming more firmly established and the validity of complaints of human rights violations based on ecological considerations is being recognized.

See also Inter-American Democratic Charter, 2001, preamble: “RECOGNIZING that a safe environment is essential to the integral development of the human being, which contributes to democracy and political stability …”.

The right to life recognized in Article 4 of the American Convention is … fundamental in the sense that it is nonderogable and constitutes the basis for the realization of all other rights. … States Parties are required to take certain positive measures to safeguard life and physical integrity. Severe environmental pollution may pose a threat to human life and health, and in the appropriate case give rise to an obligation on the part of a state to take reasonable measures to prevent such risk, or the necessary measures to respond when persons have suffered injury.

2. Indigenous peoples have the right to conserve, restore, make use of, and protect their total environment, and to the sustainable management of their lands, territories, and resources. Military activities shall not take place in the lands and territories of indigenous peoples, unless with the prior, free and informed consent of the peoples concerned.

As revised, para. 2, of Art. XVIII of the Chair’s Text reflects the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 28, para. 1. However, Art. 28 of the draft U.N. Declaration also addresses military activities. Therefore, we propose a new second sentence to address this important aspect.

3. Indigenous peoples have the right to be informed and consulted, in a timely and adequate manner, with respect to measures that may affect their environment, as well as to fully and effectively participate in plans, actions and decisions that may affect it. Where damage to Indigenous peoples and to their citizens, lands, territories, resources and environment may be significant, States and third parties shall obtain the prior, free and informed consent of the peoples concerned.

In regard to para. 3 of Art. XVIII of the Chair’s Text, we propose revisions to strengthen the right to information relevant to the safeguarding the environment. In particular, it is critical to receive information in a timely and adequate manner.

For example, see A. Korten & H.Huertas Gonzalez, Changing the Power Equation: Case Studies of Indigenous Leadership in Panama’s Darien Gap (Panama, Panama: Center for Popular Legal Assistance, 2002), at p. 44: “Indigenous peoples need to have time to read relevant materials or to give them to professionals with whom they work to help them decipher the legal terms in these often dense and technical documents. They also need the opportunity to consult with their congresses before meeting dates, in accordance with their traditional decision-making practices.”

See also the U.N. Economic Commission for Europe's Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, Åarhus, Denmark, 2001, Art. 1: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters …”

Rio Declaration on Environment and Development, 1992, Principle 10: “At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available.”

“Declaration of Principles on Freedom of Expression”, approved by the Inter-American Commission on Human Rights during its 108th regular session, 5^th preambular para.: “… guaranteeing the right to access to information held by the State will ensure greater transparency and accountability of governmental activities and the strengthening of democratic institution”.

In regard to potentially significant damage to Indigenous peoples and our lands, territories, resources and environment, it is proposed in a new sentence that our consent be obtained. Consultation alone is wholly inadequate.

Generally, in regard to the right of effective participation of indigenous peoples and the obligation to obtain our prior, free and informed consent to measures affecting us, see Committee on the Elimination of Racial Discrimination, General Recommendation XXIII (51) concerning Indigenous Peoples, para. 4 d: “The Committee calls in particular upon States parties to: … d. ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent …”

See also Report on the United Nations Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States, Geneva, Switzerland, 16-20 January 1989, Recommendations, p. 9, para. (i):

(i) Recommends that States implement the principle that their relations with indigenous peoples will be based upon free and informed consent and co-operation, rather than merely consultation and participation and that this be respected as a right …

4. Where national government policies and programs apply, Indigenous peoples have the right to participate fully in the formulation, planning, organization, and implementation of government programs and policies to conserve ~~and exploit~~ their lands, territories, and resources.

In regard to para. 4 of Art. XVIII of the Chair’s Text, our proposed revision contemplates the possible application of government conservation policies and programs to indigenous peoples’ lands, etc. In contrast to the existing text, our revised text does not presume that government programs would automatically apply. Nor do we presume that States have the right to “exploit” our lands, territories and resources. We propose the deletion of the term “exploit”, since it would be inconsistent with the objectives of the draft Declaration to make such a blanket presumption.

See the Rio Declaration on Environment and Development, 1992, Principle 22: “Indigenous people and their communities … have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.”

See also the Indigenous and Tribal Peoples Convention, 1989, Art. 7: “[Indigenous and tribal peoples] shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.”

5. Indigenous peoples have the right to assistance from their States for the purpose of protecting the environment, and from international organizations, in keeping with the procedures established in the national legislations, and without discrimination.

It is proposed that para. 5 of the Chair’s Consolidated Text be deleted and replaced with a general provision concerning the right to assistance. We propose that the following para. be added to Section Six – “General Provisions”:

In no case shall any state diminish, withdraw or deny such basic assistance to indigenous peoples as a means of compelling these peoples to alter their freely and democratically expressed opinions or positions concerning their fundamental human rights.

In any event, we would propose the deletion of the phrase “in keeping with the procedures established in the national legislations”. Such a qualification could serve to legitimize unfair limitations being imposed by States.

6. The States shall take effective measures to prohibit, punish, and prevent, in conjunction with the indigenous peoples concerned, the introduction, abandonment, or deposit of radioactive materials or waste, or toxic substances or waste, ~~in violation of legal provisions in force;~~ as well as the production, introduction, transit, possession, or use of chemical, biological, or nuclear weapons, on indigenous lands and territories.

States, in conjunction with the indigenous peoples concerned, shall take effective measures to ensure that effective legal remedies, including compensation, are available, and, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples are duly implemented.

It is proposed that para. 6 of Art. XVIII of the Chair’s Text be revised, so as to delete the qualification that the introduction, etc. of hazardous or toxic materials, etc. on Indigenous lands and territories will only be prohibited, punished, etc., if such acts are “in violation of legal provisions in force”. Such a qualification, if adopted, would serve to legitimize past and future degradations of Indigenous lands and lead to severe and far-reaching health effects relating to Indigenous people.

We also propose a new para. that would ensure effective legal remedies for Indigenous peoples, as well as programs to address the health effects resulting from such highly toxic materials and weapons.

No such qualification as found in the Chair’s text exists in the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 28, paras. 2 and 3:

States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands and territories of indigenous peoples.

States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.

See also National Congress of American Indians, “The State of Indian Nations Today: Mapping a Course for the Next Seven Generations”, 2003, p. 10: “At least 170 tribes [in the United States] are located within a 50-mile radius of 432 … highly toxic … sites. Other tribes struggle with efforts to secure return and clean up of federal sites … [and] tribal lands taken and utilized for nuclear weapons research and development. The toxic substances at these sites detrimentally impact human health as well as cultural and ecological resources.”

In regard to effective environment-related remedies, see U.N. Commission on Human Rights, Adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights: Report submitted by Ms. Fatma-Zohra Ouhachi-Vesely, submitted pursuant to Commission resolution 2002/27, Addendum: Mission to Canada (17-30 October 2002), 14 January 2003, para. (hhhhh):

The Special Rapporteur also notes allegations by indigenous groups of difficulties in receiving compensation for damage suffered as a result of phenomena of concern to her mandate.

See also Rio Declaration on Environment and Development, 1992, Principle 10: “Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

In regard to States’ obligations in para. 6 of Art. XVIII of the Chair’s text, it is indicated that such obligations be effectively carried out “in conjunction with Indigenous peoples”. However, Indigenous peoples’ input and participation should be generally addressed in terms of the implementation of the whole Declaration under Section Six -  ”General Provisions”. In this regard, we propose the following:

7. When the State declares an indigenous territory to be a protected area or subject to wildlife reserve conditions and in the case of lands and territories claimed by indigenous peoples, the conservation areas shall not be subject to any natural resources development without the informed participation of the peoples concerned.

Where States seek to designate indigenous lands or territories a biopreserve or other protected area, the prior, free and informed consent of the indigenous peoples concerned shall be obtained.

Conservation or other protected areas on indigenous lands or territories shall not be subjected to any natural resource or other development without the prior, free and informed consent and participation of the peoples concerned. Such consent shall also be required in cases where the rights or titles to lands, territories and resources are the subject of dispute between indigenous peoples and States.

We propose to delete para. 7 of Art. XVIII of the Chair’s Consolidated Text and replace it with two paras. Our proposed revisions contemplate the possible designation of Indigenous lands and territories as protected areas, but do not presume that such state authority automatically exists.

In addition, state-Indigenous disputes concerning rights or title to lands, etc. are described in a neutral manner as “disputes” and not as Indigenous peoples’ “claims”.

See also Inter-American Commission on Human Rights, umHReport of the Situation of Human Rights in Ecuador, 1997, c. 9: “The Commission recommends that the State take whatever measures are necessary to guarantee the lives and physical integrity of the Tagaeri, and any Taromenane and Oñamenane who may survive in the forest, such as the establishment of some form of legal protection for the lands they inhabit, as their very extinction as peoples is at issue.”

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