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Wednesday, July 9, 2014

Zero : DRAFT : Zero

 
Relatives,
  • Please confirm the observation that there is no mention (zero) of the Treaties, or the UN Treaty Study in this zero : draft.


"We call for the restitution of the primary source materials and testimony that was lent to the United Nations system as fundamental to the evidence in document form of the systemic (system to system) nature of the legal relationships between the Nations of Indigenous Peoples and the member states of the UN system for the purpose of the Treaty Study conducted by Dr. Miguel Alfonso Martinez of Cuba.

Such delivery, should be initial act of good faith in terms of the continuing process of systemic documentation among the Nations of Indigenous Peoples and the UN system prior to and as a necessary act of condition to allow for the full and effective participation of the Indigenous Peoples with the High Level Plenary Meeting on an equal basis and without systemic discrimination in the process of producing the Final Outcome Document of the High Level Plenary Meeting of the General Assembly 2014."


  • As this was the initial purpose of sending the Wounded Knee Chiefs to the UN in '73, this cannot be an acceptable outcome of not only the document to be authored by the President of the UNGA upon imposition of the UNHLPM 2014, but the sum of international work within the UN arena some 41 years later.  We are speaking of the recognition, establishment, and integration of the Treaties among our Nations of Indigenous Peoples, and with the government states of the UN system as fundamental to the protection of our collective rights in contemporary international law as Nations of Mother Earth, and not simply minorities or ethnic groups of the states.  While the standards of the UN Declaration on the Rights of Indigenous Peoples may be understood as the minimum threshold within the UN system for recognition of the rights of Indigenous Peoples, without the Treaty Status, namely International Personality of the Nations of Indigenous Peoples beyond the conceptual constraints (Westphalian system) of the UN as a system of global dominion, the minimum can not be the High Level.  Unless of course the intent is to constrain the further development of international law, which now since September 13, 2007 must integrate Indigenous Peoples as Equals.  As a mechanism of such constraint the UNHLPM 2014 is being engineered to deliver a procedural perfume to the translation of the UNDRIP into a minimum standard by states, not a legal obligation.  The result is the reduction at a global level of the right of nationhood of Indigenous Peoples into domesticated dependencies and not Nations in our own right.  An International Convention on the Rights of Indigenous Peoples, the next step in the process after the UN Declaration - is being surgically aborted by the UNHLPM 2014. This is not why the Chiefs of the Independent Oglala Nation were sent to the UN in  1973 from Wounded Knee.

“If we as Indigenous Peoples are equal to all other peoples, our treaties are also equal to all other treaties.”



“We also recommend that a systemic analysis of the history and causes of the colonization, domination and subordination of IP’s and our territories, be undertaken, and that additional studies be commissioned by the Permanent Forum on issues related to the use and impact of the racist Doctrine of Discovery that has allowed States to steal Indigenous territories and resources. We insist that the Doctrine of Discovery be repudiated as a matter of law and policy in the HLPM Outcomes Document.”




  • With the understanding that the final outcome document of the imposed (without consent) UNHLPM 2014 will be constructed in Silence Procedure where only the states will be participants, what is the mechanism to address the void (0x0) that will occur in terms of implementing such a UN policy position when a state such as China proclaims that there are no indigenous peoples within its jurisdiction of state sovereignty? Or, if state government such as (Canada-US-Mexico) prescribes with prejudice recognition only to those native constituencies that fall within the domestic parameters of control within their respective federal systems?

Monday, July 7, 2014

North Amercan Indigenous Peoples Caucus Statment - Alta, Norway

YouTube
Alta, Norway
North Amercan Indigenous Peoples Caucus Concluding Statement 
Arthur Manuel
"Canada and the United States voted against the UN Declaration on the Rights of Indigenous Peoples despite the fact that their entire economy and their entire world global position is based upon the colonization, based on the stealing of the land and resources of our people and it is our people who are the poorest of the poor, in Canada and the United States and we’ve been that way for generation after generation.
That what I mean it’s colonization."
Arthur Manuel, NAIPC Co-chair
 
 
Global Indigenous Preparatory Conference in Alta, Norway
June 8-12, 2013. 


Tuesday, July 1, 2014

UNPFII Report on the thirteenth session



Link:
United Nations
Economic and Social Council
Permanent Forum on Indigenous Issues
Report of the thirteenth session

At its thirteenth session, the Permanent Forum convened a one-day dialogue on the High-level Plenary Meeting/World Conference on Indigenous Peoples. The Forum is seriously concerned at the lack of substantive progress in the informal consultations held by, or on behalf of, the President of the General Assembly with Member States and indigenous peoples. The Forum is also alarmed at the conduct of certain States, whose interactions with the President of the General Assembly indicate the clear departure from the provision of the modalities resolutions. Notwithstanding the commitments made by the General Assembly in its resolution 66/296 on the organization of the Conference, the Forum is deeply concerned that the full, effective and equal participation of indigenous peoples in all processes leading to and including the High-level Plenary Meeting remains uncertain. 





Friday, June 27, 2014

Background paper prepared by Ms. Sharon Venne, Akaitcho Dene Treaty 8


HR/GENEVA/TSIP/SEM/2003/BP.11


EXPERT SEMINAR ON TREATIES, AGREEMENTS AND OTHER CONSTRUCTIVE ARRANGEMENTS BETWEEN STATES AND INDIGENOUS PEOPLES

Geneva
15-17 December 2003


Organized by the Office of the United Nations High
Commissioner for Human Rights


Background paper prepared by
Ms. Sharon Venne, Akaitcho Dene Treaty 8



Under item 2
Analysis of the difficulties relating to the full implementation of existing Treaties

The purpose of this discussion paper is to present some questions for consideration in relation to the future use of treaties with Indigenous Peoples and the importance of their implementation.  The difficulties encountered by Indigenous Peoples relate directly to the colonizer state’s failure to recognize the true nature of the Treaties.  The main failure is the refusal of the state governments to recognize the sovereignty of Indigenous Peoples. Indigenous Peoples who entered into Treaties negotiated and concluded Treaties as Nations not as domestic dependent nations as claimed by various colonial courts. The lack of following international legal norms and law had led Indigenous Peoples to the League of Nations and to the United Nations.  Indigenous Peoples pushed for a study to be done as a means to find peaceful and long lasting resolution to ongoing disputes on Treaty implementation.  The State’s lack of recognition of the finding of the UN Special Rapporteur’s final report (E/CN.4/Sub.2/1999.20) on the Treaties and his conclusions and recommendations continues to lead to confrontations between Indigenous Peoples and the state.  It has been four years since the report was submitted and accepted by the United Nations. There has been no substantive attempt by states to implement the recommendations of the final Report. The number of factors related to the state refusing to implement Treaties will be briefly highlighted in this discussion paper.

1.              There is a lack of political will on the part of the government.  The government of Canada rather than trying to implement the Treaties wants to extinguish the Treaties and replace them with comprehensive land claim agreements in the area north of 60.  The Akaitcho Dene are opposed to the comprehensive claims process and rejected a major settlement in 1990 when it required them to extinguish their rights to the lands and resources of their territories.  When the Akaitcho Dene negotiated and concluded the peace and friendship Treaty in 1900, they did not give up their relationship with their lands and resources.  Canada wants to change the relationship while the Akaitcho Dene want to implement the spirit and intent of the Treaty concluded in good faith in 1900. Since the failure of the Dene/Métis process in 1900, the Akaitcho Dene have tried a number of times to get into a process with Canada to implement their Treaty.  In the oral understanding of the Peace and Friendship Treaty, Akaitcho Dene agreed that non-Dene could live among them. However, Dene did not agree that their lives would be controlled by the non-Dene. Dene laws would continue to apply in their lands and their rights to live within their territory was not to be interfered with by the non-Dene. Initially, the non-Dene did not interfere but as more resources were found within their lands, non-Dene have been pushing Dene out of their territory and destroying the lands and waters causing hardship to the Dene.  The Elders wants to see the respect shown by the Dene at the original Treaty to be continued.

2.              One of the major identified problems in relation to the implementation of the Peace and Friendship is the failure of the education system of the state to give the true history of the colonization of Indigenous territories and the significance of the Treaties. The lack of education among the colonizers about the rights of Indigenous Peoples and non-Indigenous Peoples living under a Treaty has lead to racial tension and discrimination directed at Indigenous Peoples.  The racism being directed toward Indigenous Peoples by the colonizers who see themselves having to pay for the settlement of outstanding issues. In the Treaties, a number of undertakings were given by the Crown’s negotiators that the successor state has inherited.  Due to the lack of education on the rights of Indigenous Peoples, racism develops and causes conflict.  In a number of major studies on the justice system in Canada, the studies concluded that there was systemic racism shown towards Indigenous Peoples by the judicial system from the police to the prisons. The colonizers laws have taken precedent over the Indigenous laws that gives arise to Indigenous Peoples being forced into a racist and uncaring system. In these cases, the collective rights of the colonizers are used to override the collective rights of Indigenous Peoples.  There are many examples in Canada where non-Indigenous Peoples have tried to undermine negotiations with Indigenous Peoples. The province of British Columbia tried to have a referendum to determine the parameters of the negotiations. The questions posed in the referendum were biased. The Courts refused to intervene when asked by Indigenous Peoples. Then, Indigenous Peoples organized a massive public campaign to bring awareness of the issue. The Indigenous Peoples were able to attach the attention of unions, church groups, environmental groups, human rights organizations and individuals who campaigned against the referendum.  Despite the campaign, the write in ballots went against the Indigenous Peoples who are trying to negotiate agreements for the first time since their lands and territories were occupied by the colonizer in a complete violation of international, British, Commonwealth and Canadian legal norms.  In the same province, a modern land claim agreement concluded with the Nisgha was subjected to court challenges and demonstrations by non-Indigenous People.

3.              In attempting to negotiate the implementation of a Treaty within Canada, the negotiators have policies and procedures to follow.  The negotiations are not based on the rule of law.  While the laws are in place to protect the relationship under the Treaties, the government’s negotiators do not appear to be bound by those laws. Rather, there is reference to policies and procedures that Treaty Peoples neither negotiated nor agreed to be bound.  These policies and programs used by government to undermine the treaties by degrading their status to administrative issues rather than political arrangements between Peoples.

4.              The federal government of Canada is not prepared to accept that Indigenous Governments and laws had previously negotiated and entered into Treaties.  The process proposed by the state is an attempt to impose Eurocentric values rather than have recognition and acceptance of the Dene governments and legal system. The preferred method of Canada is to “impose” a government based on the model developed by Canada. The most recent attempts are to incorporate the governments and laws into the legislative framework of the state thereby undermining the original spirit and intent of the Treaties to live side by side in peace and friendship.

5.              In the negotiation process to implement the Treaty, Canada wants the Dene to give up their lands and resources as a means to settle outstanding disputes. The negotiations are an attempt to sever the Dene relationship with their lands and resources. For the Akaitcho Dene, the severance of their links to their lands and resources is to relinquish an integral part of themselves. When Dene give up their lands, what happens to the future generations?  It was the future generations that the Elders considered at the time of treaty making.

6.              These restrictions imposed on Indigenous Peoples by the state prohibit the full intent of the original treaties from being implemented. Indigenous Peoples spend extraordinary time and their limited funds fighting for their basic rights guaranteed under the original treaties.  The lands of the Treaty areas are being depleted from their resources causing damage to the animals, plants, waters, fish and other living organisms leaving Indigenous Peoples dependent on the colonizers for their basic needs from clothing to health care.

There are other factors related to the implementation of a Treaty:

1.              There is the difficulty of the oral and written version of the treaties.  Governments tend to follow the written version which contains much general and ambiguous language especially with respect to bring the words into language giving it life as intended.  In the new arrangements made under so-called land claims - the agreements are general and have ambiguous language, especially with respect to programs, funding and technical assistance. It is a huge problem for the so-called modern land claim groups to have their agreements implemented.

2.              In relation to new land claim agreements, there is a general failure to index compensation to take into account the impact of inflation and delayed capital payments.

3.              There were no appropriate mechanisms included in the original treaties and the modern-agreements related to implementation and that implementation would be worked out through a process of continuing negotiations.

4.              There is a perception on the part of governments that programs are not negotiable regardless of the words contained in the original treaties or the modern agreements.

5.              In most agreements, there are no provisions to discuss the view of the Indigenous Peoples. It is a government driven process which is unilateral and unyielding that undermines the spirit of making a treaty.



Item 3 (c)
The practical experiences from negotiating process are given in point form:

1.              The process is long and cumbersome.  For example, the state of Canada does not have a policy on Treaty implementation. There are two broad and general categories: land claims and treaty land entitlement.  Both of these process require at the end of the day that Indigenous Peoples must give certainty or “non-assertion undertakings” to the government in exchange for an agreement. A “non-assertion” undertaking means that Indigenous Peoples are locked into the written text of the agreement based on the colonizers language and passed through the parliament making any amendments to the original text very difficult if possible.

2.              Canada wants the negotiations to be done within the context of the state laws rather than recognizing Indigenous laws and governments.  If an Indigenous Nation wants to negotiation based on their laws and governments, the government puts them to the bottom of the list of negotiations.

3.              In Canada, the state controls all the funds for negotiations.  In this way, the state officials can arbitrarily decide who is funded and to what level.  In some instances, Indigenous Peoples negotiated for more than ten years and going into debt up to $50 million Canadian dollars.  As the debt mounts, the pressure to make an agreement becomes more intense.

4.              The state has more resources making more ably to drag on negotiations to wear down the Indigenous Peoples. 

5.              There is a general starting point that the lands and resources of Indigenous Peoples have been vested in the Crown in complete violation of international, commonwealth, English common law and Canadian law.

6.              There are many preconceived notions such as three party interests in the lands of Indigenous Peoples. If Indigenous Peoples are the owners of the lands - how can a third party have an interest in their lands and resources without the consent of the Indigenous Peoples?

7.              There are no effective mechanisms for consultation and getting the consent for use of the land and resources of Indigenous Peoples living under treaties despite rulings from various courts within the state recognizing the need to have an effective consultation process. Some courts in Canada have written that there might be a need to get the fully informed consent of the Indigenous Peoples when a treaty right is going to be impinged or interfered with.

8.              There is no attempt by the state to implement decisions of the courts.  It might take several million dollars to take a case to the Supreme Court of Canada. When a decision is made in favour of Indigenous Peoples, there are no political decisions to implement the decision. As a result, Indigenous Peoples question the true nature of the concept rule of law. What law? When is it implemented?  Only when it benefits the colonizers seem to be the answer.

Item 4 (a)
Roles of the UN

The Study on Treaties (E/CN.4/Sub.2/1999.20) made a number of important findings on the nature of Indigenous Treaties and international law.  It seems that the UN has a real role to play with regard to implementation of the Treaties.   The whole issue of exhaustion of internal mechanisms within a state makes it almost impossible for Indigenous Peoples to access the UN system. At any rate, the present UN system does not have a mechanism for Indigenous Peoples to use when dealing with violations of the Treaties. There is no effective state mechanism to deal with disputes arising from Treaty violation. Different states have developed and controlled tribunals, claims panels and commissions. These different internal bodies have not brought about an equitable and lasting resolution to the problems created by Treaty violations. Most treaty violation usually occurs as a result of a state intervention in the lives of the Indigenous Peoples.  There should be an external process at the UN when there is no effective dispute resolution within a state.  The dispute resolution process must be developed on an equal basis with Indigenous Peoples. Indigenous laws and legal norms must form an integral part of the process. The mechanism has to be independent and free from political interference.  The international system needs to recognize the collective nature of the rights of Indigenous Peoples and the collective rights to their lands and resources. An appropriate dispute resolution mechanism must have international supervision of disputes arising from Treaty violations. Treaties were made with independent sovereign nations. Indigenous Peoples were not subjects of the Crowns of Europe.  Treaties were made to ensure a peaceful settlement of Indigenous territories.  The fact that settlement has occurred in Indigenous lands does not diminish Indigenous Peoples international legal persona.   As the Special Rapporteur wrote in his final report, the treaties continue “to be fully in effect and consequently are sources of rights and obligations for all the original parties to them (or their successors) who shall fulfill their provisions in good faith.” The United Nations has a role to fulfill if there is going to be justice for Indigenous Peoples.

-----
     The views expressed in this paper do not necessarily reflect those of the OHCHR.

Study on Treaties, Agreements and other Constructive Arrangments



Add caption


United Nations 
Economic and Social Council
Commission on Human Rights

Thursday, June 26, 2014

Frente Indígena de Organizaciones Binacionales: DEMANDA al ONU



Oaxaca, México, a 30 de mayo de 2014.



A la opinión pública

A los medios de comunicación

A la Presidencia de la Asamblea General de la ONU

Al Gobierno Constitucional de los Estados Unidos Mexicanos

A la Comisión Interamericana de Derechos Humanos

Al Congreso Nacional de México

A las Radios Comunitarias de México y los Estados Unidos

Al Foro Permanente sobre las Cuestiones Indígenas de Naciones Unidas

A las organizaciones defensoras de los Derechos Humanos



El Frente Indígena de Organizaciones Binacionales (FIOB), integrado por individuos y organizaciones indígenas, migrantes y no migrantes con base social en los estados de Oaxaca y Baja California de México así como en el estado de California de los Estados Unidos, demanda la cancelación de la Conferencia Mundial sobre los Pueblos Indígenas que tendrá verificativo en el mes de septiembre los días 22 y 23 en la Ciudad de Nueva York, debido a que no existieron las condiciones necesarias para la generación de una amplia convocatoria en la preparación, ejecución y elaboración de los resolutivos que darán lugar sobre la problemática ancestral que hemos sufrido los pueblos indígenas originarios en el mundo por más de 500 años.



Es así que por lo anteriormente expresado, comulgamos en el llamado que hacen nuestros hermanos en el Continente Americano, al exigir la cancelación de la conferencia por lo que exhortamos a los miembros que constituyen el Foro Permanente sobre las Cuestiones Indígenas en la ONU a que habiliten las condiciones necesarias para realizar una Consulta Popular a los Pueblos Indígenas del Mundo a efectos de que subsanar las omisiones citadas para así dar paso a la reprogramación a una conferencia mundial incluyente y participativa.



Estamos ciertos que bajo ninguna circunstancia se dará marcha atrás a las conquistas logradas en lo que prescribe el Convenio 169 de la OIT sobre Pueblos Indígenas y Tribales en Países Independientes en su numeral 6, de la propia Declaración sobre los Derechos de los Pueblos Indígenas en su numeral 19, de la resolución 59/154 del Segundo Decenio Internacional de los Pueblos Indígenas del Mundo, establecida en el preámbulo de su segundo párrafo en concordancia con el Convenio sobre Diversidad Biológica en su anexo II, numeral 10, y demás instrumentos relativos como la Declaración Interamericana sobre los Derechos de los Pueblos Indígenas en su resolutivo 3, inciso c) que amparan el principio del Consentimiento Libre Previo e Informado (CLPI), y que otorgan la base normativa para demandar su cumplimiento a efectos de generar un diálogo respetuoso y pro positivo con los Estados en un plano de igualdad y de representatividad, salvaguardando a su vez el derecho de determinar nuestro futuro, y el de nuestras tierras.



“Por el respeto de los derechos de los pueblos indígenas”



Frente Indígena de Organizaciones Binacionales

Saturday, June 21, 2014

Mapuche Nation sends Message to UN HLPM via President Evo Morales of Bolivia


Mapuche Nation to Evo Morales:
“The United Nations is denying the direct, effective and equal participation of the Indigenous Peoples in the proceedings leading up to the UN High Level Plenary Meeting of September 2014.”

 

A delegation of the Mapuche Nation of Chile on Wednesday (June 18, 2014) called upon President Evo Morales of Bolivia to carry a message on behalf of the Indigenous Peoples of the world to the High Level Plenary Meeting (HLPM) of the UN General Assembly, (aka World Conference on Indigenous Peoples) to be held on 22 and 23 September in New York at UN headquarters.

The Mapuche delegation was led by Aucan Huilcaman, head of the International Relations of the Mapuche Council of All Lands, who met with President Morales for that purpose at the Government Palace.

"We want president Evo Morales carry the message of all indigenous peoples of the world, by directly addressing the fact that the United Nations has applied its rules of procedure as a system of states in the organizing of the HLPM, restricting the participation of indigenous peoples and preventing a direct and effective dialogue with equality as peoples, equal to all other peoples."said Aucan.

The Mapuche Nation representative also anticipated that along with the message to the UN,  the Mapuche also seek to open a dialogue with the Union of South American Nations (UNASUR), which is an organ of state governments which includes constituencies of indigenous peoples.

"Among the constituencies of the governments that make up UNASUR there is a majority of indigenous peoples therefore we need to establish dialogue between the states and Indigenous Peoples operating under the framework of UNASUR," he said.

Aucan Huilcaman explained that the Bolivian President informed the Mapuche delegation that his government has prepared some formulas to respond to that particular situation, which, in his opinion, is a reality of which he himself is evidence as president of Bolivia. On separate issue, the Mapuche diplomat claimed that the indigenous peoples of Chile and Latin America are concerned about the maritime dispute between Bolivia and Chile, and said that the Mapuche support the search for an amicable solution.

"We call on both governments to make efforts so that they arrive at an amicable solution. We are concerned that be no more tensions, no more disputes between neighbor countries and peoples in the region of South America and that we should all seek an appropriate path of amicable settlement of the issues," said Aucan.