Saturday, March 1, 2014

Analysis of the PGA’s aide memoire

Prepared by the GCG Secretariat 1 March 2014

The decision of the PGA as set out in his aide memoire of 26 February 2014 addresses three outstanding matters. The first is the remaining organizational arrangements of the HLPM/WCIP (operative paragraph 12 of GA resolution A/RES/66/296, “the modalities resolution), the second is the informal interactive hearing (operative paragraph 7 of the modalities resolution) and the third is the drafting of the outcome document (operative paragraph 9 of the modalities resolution). The PGAs plan of action fails to uphold the rights affirmed in the UN Declaration on the Rights of Indigenous Peoples (the Declaration) and does not comply with the modalities resolution as follows: 

Organizational matters 
Operative paragraph 12 of the modalities resolution states: 

Requests the President of the General Assembly, in consultation with Member States and representatives of indigenous peoples, to finalize the organizational arrangements for the World Conference, including the definition of the specific themes for the round-table discussions and the interactive panel discussion, the possible inclusion of an opening ceremony involving indigenous peoples, taking into account the relevant provisions of the present resolution and the inclusive process for the discussion of the outcome document, and the identification of the chairs of the round-table discussions and panel discussion, taking into account the level of representation and adequate geographical representation; (emphasis added) 

This paragraph refers to three specific matters:  themes, an opening ceremony and the appointment of co-chairs to the sessions of the HLPM/WCIP. It also provides guidance on how these matters are to be decided, the parties to be included in the decision making process as well as the process itself.

The PGA has defined two distinct consultation processes, the first being consultation solely amongst states. For the state only consultations the PGA will appoint two member states to undertake such consultations on his behalf commencing the week of 3 March 2014. The arrangements for these consultations will be set out in a letter to states. In a separate process, Indigenous groups (not Indigenous Peoples) through the Permanent Forum on Indigenous Issues (PFII) are to identify their own representatives to undertake consultations on behalf of the PGA amongst the indigenous community. The indigenous representatives would then report directly to the PGA on the outcome of their consultations and would be invited to share those outcomes with states. The PGA would then draft text and determine outcomes which only states will consider.

The process the PGA has set out does not provide for Indigenous Peoples and states to work together on an equal basis and therefore does not uphold the principle of equality. It provides extremely limited opportunities for Indigenous Peoples to participate in decisions that will affect our rights and could lead to an adversarial approach pitting Indigenous Peoples against states.  Further, states will not have to table their positions in an open forum where Indigenous Peoples can bear witness, nor will those states that hold regressive positions have to engage with Indigenous Peoples and explain why they have taken such positions. Indigenous Peoples will have to rely upon reports from friendly states on the content and substance of state consultations as there is no reciprocal obligation on states to share the results of their consultations with Indigenous Peoples meaning this process is neither inclusive nor open. This approach is not consistent with article 18 of the Declaration which affirms Indigenous Peoples right to participate in decisions that affect them or articles 3 and 4.  Further, it does not uphold the spirit and intent of the Declaration because it will not enhance harmonious and cooperative relations based on the principles of justice, democracy, respect for human rights, non-discrimination and good faith (preambular paragraph 18 of the Declaration).

From a practical perspective the process outlined by the PGA suggests that no technical support would be provided to Indigenous Peoples to undertake such consultations. This is inconsistent with article 41 of the Declaration which states that the organs and specialized agencies of the UN system and other intergovernmental organizations are to contribute to the full realization of the provisions of the Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Further, article 41 implies a positive duty on the UN to establish ways and means of ensuring participation of Indigenous Peoples on issues affecting them in accordance with the rights set out in the Declaration. The indigenous consultation process places a heavy technical and logistical burden on Indigenous Peoples with no guarantee that the outcomes of such consultations would even be considered on an equal basis with the outcomes of state consultations.

Another practical challenge is that if consultations amongst states are to start the week commencing 3 March, Indigenous Peoples are not in a position to influence the outcome of that process as the PGA has failed to give us sufficient notice to be in New York. 

The PGA’s process does not support a rights based approach or a partnership approach and places an unreasonable burden on Indigenous Peoples with little transparency required from states in relation to the positions they take. Indigenous Peoples are relegated to a consult and share position with no ability to engage on an equal basis with states. 

Informal interactive hearing 
Operative paragraph 7 of the modalities resolution states: 

Requests the President of the General Assembly to organize, no later than June 2014, an informal interactive hearing with representatives of indigenous peoples and representatives of entities of the United Nations system, academic institutions, national human rights institutions, parliamentarians, civil society and non-governmental organizations, in accordance with the relevant provisions of the present resolution, to provide valuable input into the preparatory process for the World Conference; (emphasis added) 

The PGA has redefined the informal interactive hearing by limiting it to an interactive civil society briefing”.  He suggests that states use the practice employed during the Open Working Group on Sustainable Development Goals, i.e. civil society representatives are encouraged to convene meetings prior to the start of intergovernmental discussions and to share the outcomes of their deliberations with states.

This process is somewhat confusing as it refers to three distinct processes, the PFII is to assist with organizing the civil society briefing, Indigenous Peoples are to convene their own meetings and share the outcomes of such meetings with states and, states are to receive the outcomes of Indigenous Peoples meetings whilst holding their own intergovernmental discussions.  The PGAs definition also does not provide for entities of the UN, academic institutions, national human rights institutions or parliamentarians to participate unless they define themselves as civil society.  All of these entities are included as participants in the informal interactive hearing referenced in the modalities resolution.

The PGA has also redefined the role of states in this process by suggesting intergovernmental discussions continue alongside but separate from the civil society briefing and that Indigenous Peoples share directly with states the results of their consultations. There is no reciprocal obligation on states to share the outcomes of their discussions with Indigenous Peoples. This is vastly different from what the modalities resolution provides for. Operative paragraph 8 states: 

Encourages Member States actively to participate in the interactive hearing to facilitate the best possible interaction and dialogue between Member States and representatives of indigenous peoples, non-governmental organizations and civil society organizations; (emphasis added) 

It is clear the intention of the modalities resolution is for an actual face to face meeting to be organized by the PGA where states are encouraged to participate, not informal discussions solely amongst “civil societythat are separate from state consultations. 

The PGA’s decision does not foster respectful and equal relationships between states, the UN and Indigenous Peoples and it fails to build upon precedents employed by the UN to ensure the full and effective participation of Indigenous Peoples in decisions affecting our rights.  It allows the PGA to play a passive role in the informal interactive hearing and redefines what should be an open and public process to a limited and potentially pointless exercise. As such it does not strengthen the recognition of Indigenous Peoples’ rights within the UN system and falls below the minimum standards set out in the Declaration. 

Drafting of the outcome document 
Operative paragraph 9 of the modalities resolution states: 

Decides that the World Conference shall result in a concise, action oriented outcome document, and requests the President of the General Assembly to prepare a draft text, on the basis of consultations with Member States and indigenous peoples and by taking into account the views emerging from the preparatory process and the interactive hearing referred to in paragraph 7 above, and to convene inclusive and open informal consultations at an appropriate date to enable sufficient consideration by Member States and agreement by the General Assembly before its formal action at the high-level meeting; (emphasis added) 

The PGA has reserved for himself the right to determine the outcomes on the remaining organizational matters as well as the drafting of the outcome document and any such outcomes or text will be considered only by states. Whilst the aide memoire does not outline how this will occur, it clearly does not include an inclusive and open process whereby Indigenous Peoples and states work on an equal footing. There is also no reference to the preparatory process and the informal interactive hearing so there is no assurance that the outcome of those processes will be taken into account in the PGAs deliberations as is required by the modalities resolutions. 

The conclusion of the UN Secretary Generals report entitled, Ways and means of promoting participation at the United Nations of indigenous peoples’ representatives on issues affecting them” A/HRC/21/24, aptly reflects the failings of the PGA’s decision to continue to foster a positive and beneficial relationship between Indigenous Peoples, states and the UN.  It reads: 

“To the extent that it has been permitted to date, indigenous peoples’ participation at the United Nations has been a positive experience. It has enabled indigenous peoples who had been historically excluded to work together peacefully and in partnership with States to advance their issues and rights. It has been a process of mutual trust-building, premised on equality and equity among stakeholders, and has led to fruitful outcomes and greater commitments by indigenous peoples, States and the United Nations system to strengthen recognition and respect for indigenous peoples’ rights. It is hoped that this spirit of openness and continuing collaboration with indigenous peoples will be improved by further enhancement of procedures to enable indigenous peoples’ participation in all relevant work of the United Nations, in a way that realizes, respects, promotes and protects their rights under the United Nations Declaration on the Rights of Indigenous Peoples and other relevant international human rights standards.

The PGA has chosen to reinterpret the modalities resolution in a very restrictive manner to the detriment of Indigenous Peoples rights. He makes no reference to the Declaration and does not use the Declaration as a normative framework upon which to base his decision. As such his decision fails to recognize, promote and protect Indigenous Peoples rights; it does not uphold the principle of equality and does not provide for the full and effective participation of Indigenous Peoples.

President of the UN General Assembly