Monday, May 21, 2012

UNPFII Urges Rejection of "Nefarious" Doctrine of Discovery

18 May 2012
Economic and Social Council

Department of Public Information • News and Media Division • New York
Permanent Forum on Indigenous Issues
Eleventh Session
15th Meeting (PM)

Concluding Session, Permanent Forum Says Impact of Racist ‘Doctrine of Discovery’ Endures Today, but Indigenous Rights Declaration Offers Framework for Redress

Adopts Report with 9 Consensus Texts,  Including Recommendations on Theme, 2014 World Conference, Intellectual Property, Food Sovereignty, Human Rights

Lamenting the enduring manifestations of the “Doctrine of Discovery” and other morally condemnable, socially unjust and racist policies used for centuries by colonizers as legal justification to disenfranchise indigenous peoples and seize their lands, the Permanent Forum on Indigenous Issues today urged the rejection of such “nefarious” dogmas, and encouraged measures that would redefine relations between native and aboriginal peoples and the State based on justice.

As the Permanent Forum — the United Nations expert advisory body dealing with the human, economic and social rights of indigenous peoples — concluded its eleventh session, it approved a set of nine draft recommendations, highlighted by a text approved on the special theme, the ongoing impact of the Discovery Doctrine on indigenous peoples and the right redress (document E/C.19/2012/L.2).  That fifteenth century Christian principle was denounced throughout the session as the “shameful” root of all the discrimination and marginalization indigenous peoples faced today.

The Permanent Forum noted that, while such doctrines of domination and “conquest”, including terra nullis and the Regalian doctrine, were promoted as authority for land acquisition, they also encouraged despicable assumptions:  that indigenous peoples were “savages”, “barbarians”, “inferior and uncivilized,” among other constructs the colonizers used to subjugate, dominate and exploit the lands, territories and resources of native peoples.  According to the text, signs of such doctrines were still evident in indigenous communities, including in the areas of:  health; psychological and social well-being; conceptual and behavioural forms of violence against indigenous women; youth suicide; and the hopelessness that many indigenous peoples experience, in particular indigenous youth.

Noting that the United Nations Declaration on the Rights of Indigenous Peoples, treaty body jurisprudence and case law from all major international human rights institutions confirmed that indigenous peoples hold collective rights to the lands, territories and resources that they had traditionally owned, occupied or otherwise used, the Forum said that “such rights have the same legal status as all other property rights [and] States are no longer allowed to deploy positivist legal interpretations of laws adopted during an era when doctrines such as terra nullis were the norm”.  The Declaration also demanded that States rectify past wrongs caused by such doctrines through law and policy reform.

By its text, the Permanent Forum reiterated that redefining the relationship between indigenous peoples and the State was an important way to understand the discovery doctrines and to develop a vision of the future for reconciliation, peace and justice.  “To that end, [the Declaration] provides a strong human rights framework and standards for the redress of such false doctrines, notably in articles 3, 28 and 37,” the text states, also encouraging the conduct of the processes of reconciliation “in accordance with the principles of justice, democracy, and respect for human rights, equality, non-discrimination, good governance and good faith”.

In his closing remarks, Grand Chief Edward John, Chairman of the Forum, welcomed the adoption of the recommendations, saying it was indeed necessary to redress the many issues that had emerged over the years the doctrine had been in place.  There was a pressing need for indigenous peoples to rediscover and to celebrate their own cultures and heritage.  The challenge now was to enter a new area in which the effects of the doctrine of discovery did not continue to be felt by indigenous peoples in the countries in which they lived, he said.

The discussions throughout the session had highlighted that it was important for the Permanent Forum to continue to provide the space for discussion of such issues.  He also noted that the high-level event held yesterday to mark the fifth anniversary of the adoption of the Declaration had been “highly successful despite being bumped from the General Assembly Hall at the last minute”.  That Declaration was a reaffirmation of the collective rights of all indigenous peoples.

The other texts adopted by the Permanent Forum today touched on the topics it covered during its eleventh session, which opened at Headquarters on 7 May.  Along with the Doctrine of Discovery, the texts contained recommendations on human rights; food sovereignty; violence against indigenous women and girls; the World Intellectual Property Organization (WIPO); arrangements for the 2014 World Conference on Indigenous Peoples; and emerging issues.  The recommendations were introduced and orally amended by Rapporteur Megan Davis.

Also approved were three draft decisions recommending the following:  that the Council decide to authorize a three-day expert group meeting on “Indigenous Youth:  identity, challenges and hope”; that the Council decide that the twelfth session of the Permanent Forum shall be held at Headquarters from 20 to 31 May 2013; and that the Council take note of the provisional agendas of the Permanent Forum’s eleventh and twelfth sessions.  They will be forwarded to the Economic and Social Council for final action.

Adopting a concise text on human rights matters (document E/C.19/2012/L.9), the Permanent Forum noted that, since the adoption of the Declaration five years ago, very few States had entered into effective dialogue or partnerships or undertaken adequate legal reforms to implement its tenets.  “Alarmed by ongoing human rights violations” the Forum’s members called on all States to bring an end to such violations and to recognize and respect the standards set out in the Declaration.  Urging all States to provide detailed implementation reports to the Forum, the experts recommended public education initiatives and best practices in respect of the Declaration.

Mindful of the human rights violations experienced by indigenous peoples, the experts encouraged States, in particular those in the Pacific region, to recognize and implement the basic fundamental rights articulated in the Declaration, particularly the right to self-determination.  Further, the Forum urged States to promote models for the health, social, legal and other sectors of indigenous communities and service providers to follow in implementing the Declaration.  It was recommended that the World Health Organization (WHO) revisit its report on social determinates of health to address the cultural determinates of health, such as land, language, ceremony, and identity, “which are essential for the health and well-being of indigenous peoples”.

In a wide-ranging text containing draft recommendations on the arrangements for the much-anticipated 2014 World Conference (document E/C.19/2012/L.5), the Permanent Forum emphasized that equal, direct and meaningful participation by indigenous peoples throughout all stages of the preparations for the Conference was essential “for the international community’s achievement of a constructive and comprehensive outcome which will genuinely improve the status and conditions of indigenous peoples worldwide”.  In that regard, the Forum welcomed the establishment of an international coordinating group and its efforts to realize such participation over the next two years of preparations.

It also welcomed the decision of the President of the sixty-sixth session of the General Assembly to appoint the Permanent Representative of Mexico to the United Nations, Luis Alfonso de Alba, and the international representative of the Saami Parliament of Norway, John Henriksen, to conduct inclusive informal consultations on his behalf, with a view to determining the modalities for the World Conference, including substantive participation of indigenous peoples.  The Assembly President was also called on to share with Member States the suggestions and recommendations emanating from the Permanent Forum’s half-day dialogue, held on 14 May, on preparations for the World Conference (see Press Release HR/5092).

While calling on Member States to intensify their efforts to adopt arrangements for the Conference “as soon as possible and before the end of the sixty-sixth session”, the Permanent Forum goes on to recommend that the event consist of a two–day high-level plenary meeting of the General Assembly, as well as round tables and interactive dialogues and be co-chaired by representatives of Governments and indigenous peoples.  It should be held in September, ahead of the Assembly’s annual general debate, to encourage the highest level of political participation.  It was also recommended that a two-day thematic debate be convened ahead of the World Conference.

As for WIPO, and the work of that agency’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, the Permanent Forum adopted a text recommending that WIPO seek the participation of experts on international human rights law specifically concerning indigenous peoples, so they could provide input into the Committee’s substantive consultation process, especially regarding language and how indigenous peoples were characterized (document E/C.19/2012/l.4).

The Geneva-based Intergovernmental Committee is in the midst of text-based negotiations towards reaching agreement on an international legal instrument which would ensure the effective protection of traditional knowledge, traditional cultural expressions, folklore and genetic resources.  The Permanent Forum, therefore, demanded that WIPO recognize and respect the applicability and relevance of the Declaration on the Rights of Indigenous Peoples “as a significant international human rights instrument” that must inform the Intergovernmental Committee process and the overall work of WIPO.

Expressing concern regarding the continued violence against indigenous women and girls, the Permanent Forum also adopted a text endorsing the report and recommendations of the international expert group meeting on combating that scourge (document E/C.19/2012/L.3) and requested that that report form part of the official documentation of the fifty-seventh session of the Commission on the Status of Women in 2013.  It further recommended that the United Nations Entity for Gender Equality and the Empowerment of Women (UN-Women) and the bureau of the 2013 session of the Women’s Commission include indigenous women as experts on violence against women in planned interactive panels, and guarantee the participation of indigenous women in both the preparatory process and during the session.

The Permanent Forum also adopted a text that contained recommendations emanating from its half-day discussions on the right of indigenous peoples to food and food sovereignty, held on 14 May (document E/C.19/2012/L.10).  (See Press Release HR/5092.)  Noting that indigenous rights to food sovereignty were inextricably linked to the collective recognition of the rights to land and resources, and culture and social organization, the experts welcomed the legal reforms and policies carried out in some States to recognize those rights.

Noting also that the levels of hunger are often disproportionately higher in indigenous communities, the Permanent Forum encouraged States to take positive actions to facilitate that capacity of indigenous peoples to strengthen traditional food systems, through, among others, formally recognizing and demarcating indigenous territories to enable them to better carry out productive food activities.

Regarding its discussions on Central and Eastern Europe, the Russian Federation, Central Asia and Transcaucasia (see Press Release HR/5091), the Permanent Forum approved another set of recommendations (document E/C.19/2012/L.10), noting that the peoples of those regions, though small in number, were among the world’s most ethnically diverse.  They faced myriad challenges, including low life expectancy and dispossession of their lands, and their languages were under serious threat of disappearing.  “One of the main challenges is that [they] do not have access to mechanisms to ensure the protection of their rights”, the Permanent Forum says, adding that those indigenous peoples, largely involved in reindeer herding, also needed to be more involved in local politics and decision-making on issues that involved them.

With those issues in mind, the experts recommended an increase in decision-making mechanisms for their participation in matters concerning land use and resources exploration and exploitation, and access to free legal advice regarding development issues.  They also urged the Governments in the region, including the Russian Federation, to “work in good faith with indigenous peoples for the unqualified endorsement and full implementation of the Declaration”.  Those Governments were also urged to implement other international instruments regarding indigenous land rights, including through recognizing reindeer herders’ use and management of grazing land and the use of necessary biological resources by hunters, fishers and foragers.

As to its future work, the Forum appointed several of its members to undertake studies or reviews in a number of areas relevant to its mandate.  Those include a study on the right to participation in decision-making processes of indigenous youth in the Nordic countries; a review of the World Bank’s operational policies on indigenous peoples to determine to what extent they respected the Declaration on Indigenous Rights; a study on the situation of indigenous peoples with disabilities; and a study on the impact of the mining boom upon indigenous peoples’ communities in Australia.  Also recommended was a study on the elaboration of an optional protocol to the Declaration.

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For information media • not an official record