International Labour Organisanisation Convention: Self Determination?

[Publisher’s Note: I include the report here from the ILO sent by Les Malezer representing Congress of Australia’s First People. I note that Les reports the ACTU does not appear to have a position regarding the resolutions passed. If this is true, it is a sad day for the Trade Union Movement in this country. The top down approach of the ACTU is not working, especially given government closure of services to remote communities in WA and SA.]

Concluding Its Session, Third Committee Sends 62 Draft Texts to General Assembly,  Sixty-ninth session, 55th Meeting (AM)

[EXTRACT]
The Committee then approved, without a vote, a draft text on the rights of indigenous peoples (document A/C.3/69/L.27), for which possible programme budget implications were read out.

In explanation of position after the action, the representative of Canada said his delegation had joined the consensus to promote and protect the rights of indigenous people.  Recognizing aboriginal rights, the Government of Canada had a legal duty to consult with aboriginal people.

The representative of Djibouti, speaking on behalf of the African Group, supported the draft resolution.  However, the Group was concerned about preambular paragraph 9, as it had not been negotiated.  Disassociating herself from that paragraph, she requested that her statement was reflected in the records.

France’s delegate reiterated her delegation’s support for the promotion and protection of indigenous peoples’ rights, and encouraged all Member States to address the challenges facing them.

The representative of United Kingdom said her Government was fully committed to protect indigenous peoples’ rights and recognized the full protection of human rights.

Kuwait’s delegate welcomed the draft resolution’s approval as well as the cooperation seen between all Member States.  However, her delegation could not accept the outcome of the regional review conferences on population and development, including the Regional Conference on Population and Development in Latin America and the Caribbean.  She requested that her statement was reflected in the records.

Yemen’s representative said her Government continued to ensure the promotion and protection of all individuals.  Nevertheless, she did not accept preambular paragraph 9, which was a reference to the outcome of a regional conference.

The representative of Nigeria said the outcome of the regional review conferences on population and development did not represent a consensus document of the United Nations.  Therefore, her delegation was disassociating itself from preambular paragraph 9.

Making a clarification, Bolivia’s delegate said that paragraph was an outcome of lengthy negotiations and meetings.


A/C.3/69/L.27. — RIGHTS OF INDIGENOUS PEOPLES

PP1         Recalling all relevant resolutions of the General Assembly, the Human Rights Council and the Economic and Social Council relating to the rights of indigenous peoples, and reaffirming its resolutions 65/198, 66/142, 67/153, 68/149 and 69/2, also recalling the resolution 27/13 of 25 September 2014;

PP2         Welcoming the outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples, held in New York on 22 and 23 September 2014, in which Heads of State and Government, ministers and representatives of Member States reiterated the important and continuing role of the United Nations in promoting and protecting the rights of indigenous peoples and welcomed the inclusive preparatory process for the high-level plenary meeting, including the comprehensive engagement of the representatives of indigenous peoples;

PP3         Reaffirming the United Nations Declaration on the Rights of Indigenous Peoples, which addresses their individual and collective rights;

PP4         Stressing the importance of promoting and pursuing the objectives of the United Nations Declaration on the Rights of Indigenous Peoples also through international cooperation to support national and regional efforts to achieve the ends of the Declaration, including their right to maintain and strengthen the distinct political, legal, economic, social and cultural institutions of indigenous peoples and the right to participate fully, if they so choose, in the political, economic, social and cultural life of the State;

PP5         Recalling the United Nations Millennium Declaration, the 2005 World Summit Outcome, the outcome document of the high-level plenary meeting of the General Assembly on the Millennium Development Goals and the outcome document, entitled “The future we want”, of the United Nations Conference on Sustainable Development, held in Rio de Janeiro, Brazil, from 20 to 22 June 2012; PP6 Recognizing the twenty-fifth anniversary of the adoption of the Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International Labour Organization;

PP7         Taking note of the outcome documents of the recent regional review conferences on population and development, including the Regional Conference on Population and Development in Latin America and the Caribbean, which included “Indigenous peoples: interculturalism and rights”;

PP8         Recognizing the value and the diversity of the cultures and the form of social organization of indigenous peoples and their holistic traditional scientific knowledge of their lands, natural resources and environment;

PP9         Recognizing further the importance of traditional sustainable agricultural practices, including traditional seed supply systems, as well as access to credit and other financial services, markets, secure land tenure, health care, social services, education, training, knowledge and appropriate and affordable technologies, including efficient irrigation, the reuse of treated wastewater and water harvesting and storage for indigenous peoples and others living in rural areas;

PP10      Welcoming the achievements made during the Second International Decade of the World’s Indigenous People, and recognizing that challenges remain in finding solutions to the problems faced by indigenous peoples in such areas as traditional knowledge, science, culture, education, health, human rights, the environment and social and economic development;

PP11      Concerned about the extreme disadvantages that indigenous peoples have typically faced across a range of social and economic indicators and about the impediments to their full enjoyment of their rights;

PP12      Stressing the need to pay particular attention to the rights and special needs of indigenous women, children, youth, older persons and persons with disabilities, as set out in the United Nations Declaration on the Rights of Indigenous Peoples, including in the process of protecting and promoting their access to justice;

PP13      Recognizing the forthcoming thirtieth anniversary of the United Nations Voluntary Fund for Indigenous Peoples, in 2015,

1               Takes notes of the work of the Expert Mechanism of the rights of the Indigenous Peoples, of the Permanent Forum on Indigenous Issues and of the Special Rapporteur of the Human Rights Council on the rights of indigenous peoples, takes note of her report, and encourages all Governments to respond favorably to her requests for visits;

2         Welcomes the outcome document of the high-level plenary meeting of the GA, known as the World Conference on Indigenous Peoples, and urges governments and the UN system, in consultation and cooperation with indigenous peoples through their representatives and institutions, to implement, when necessary, appropriate measures, concrete policies, plans, programs, projects and other measures to realize the commitments made in the outcome document, and invites international and regional organizations, within their respective mandates, national human rights institutions, where they exist, civil society, including NGOs, and other relevant actors to contribute to those efforts;

3         Reiterates the commitment of Member States to cooperate with indigenous peoples, through their own representative institutions, to develop and implement national action plans, strategies or other measures, where relevant, to achieve the ends of the Declaration on the Rights of Indigenous Peoples;

4         Takes note with appreciation of the final report of the Secretary-General on the achievement of the goal and objectives of the Second International Decade of the World’s Indigenous People, one of the major highlights of which was the adoption, in 2007, of the United Nations Declaration on the Rights of Indigenous Peoples, but regrets that gaps remain between the formal recognition of indigenous peoples’ rights and the implementation of policies on the ground;

5         Decides to convene a high-level event to mark the tenth anniversary of the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, to be held during the 71st General Assembly session in 2017, and that the event will take stock of the achievements of the preceding ten years and assess the remaining challenges for the rights of Indigenous Peoples, and also discuss the further follow-up of the United Nations Declaration on the Rights of Indigenous Peoples, including the consideration of a Third International Decade;

6         Welcomes the designation by the Secretary-General of the Under-Secretary-General for Economic and Social Affairs as the Senior Official of the United Nations system responsible for coordinating follow up action for the World Conference on Indigenous Peoples, in order, in consultation and cooperation with indigenous peoples, the Inter- Agency Support Group on Indigenous Peoples’ Issues and Member States, to begin development, within existing resources, of a system-wide action plan to ensure a coherent approach to achieving the ends of the Declaration, raising awareness of the rights of indigenous peoples and increasing the coherence of the activities of the system in this regard;

7         Encourages those States that have not yet ratified or acceded to the International Labour Organization Indigenous and Tribal Peoples Convention, 1989 (No. 169) to consider doing so and to consider supporting the United Nations Declaration on the Rights of Indigenous Peoples, and welcomes the increased support by States for the Declaration;

8         Urges Governments and intergovernmental and non-governmental organizations to continue to contribute to the United Nations Voluntary Fund for Indigenous Peoples and the Trust Fund on Indigenous Issues, and the United Nations indigenous peoples partnership invites indigenous organizations and private institutions and individuals to do likewise;

9         Decides to continue observing in New York, Geneva and other offices of the United Nations every year on August 9th The International Day of Indigenous Peoples, to request the Secretary –General to support the observance of the day from within existing resources, and to encourage Governments to observe the Day at the national level;

10       Encourages States to consider including in their reports related to indigenous peoples and women, information on the progress made and challenges in the implementation of Commission on the Status of Women resolutions 49/7 of 11 March 2005, entitled “Indigenous women: beyond the ten-year review of the Beijing Declaration and Platform for Action”, and 56/4 of 9 March 2012, entitled “Indigenous women: key actors in poverty and hunger eradication;

11       Also encourages States, in consultation and cooperation with indigenous peoples, to take the appropriate measures at national level, including legislative, policy and administrative measures, to achieve the ends of the United Nations Declaration on the Rights of Indigenous Peoples, and to promote awareness of it among all sectors of society, including members of legislative, judicial and civil service bodies;

12       Underlines the need to intensify efforts, in cooperation with indigenous peoples, to prevent and eliminate all forms of violence and discrimination against indigenous women, children, youth, older persons and persons with disabilities and to support measures that will ensure their empowerment and full and effective participation in decision-making processes at all levels and in all areas and eliminate barriers to their full, equal and effective participation in political, economic, social and cultural life;

13       Stresses the need to strengthen the commitment of States and the entities of the United Nations system to mainstream the promotion and protection of the rights of indigenous peoples into development agenda at the national, regional and international levels, and encourages giving due consideration to the rights of indigenous peoples on the ongoing discussion of the post-2015 development agenda;

14       Encourages States and entities of the United Nations system to strengthen international cooperation including to address the disadvantages faced by indigenous peoples and to increase technical cooperation and financial assistance in that regard;

15       Reaffirms its decision in the outcome document of the high-level plenary meeting of the General Assembly, known as the World Conference on Indigenous Peoples, to continue at its seventieth session the consideration of ways to enable the participation of indigenous peoples’ representatives and institutions in meeting of relevant United Nations bodies on issues affecting them, including any specific proposals made by the Secretary General in this regard;

16       Welcomes the report of the United Nations High Commissioner for Human Rights on the status of the United Nations Voluntary Fund for Indigenous Peoples and requests the High Commissioner to present a report at the Seventy First Session of the General Assembly;

17       Decides to include in the provisional agenda of its seventieth session, under the item entitled “Rights of indigenous peoples”, a sub-item entitled “Follow-up to the outcome document of the high-level plenary meeting of the General Assembly, known as the World Conference on Indigenous Peoples”.

I was invited to participate in a seminar at the UN in Geneva on the ratification of this convention and I have just arrived today into Geneva to attend. It is now about 9.30 pm. The seminar is being hosted by the Permanent Mission of Denmark and Mexico, and organised in partnership with IWGIA, the University of Lucerne and the ILO. They have paid my costs of participation.

The two day seminar begins in the morning (Thursday, 27 November 2014). I hope to keep you informed of the discussions as they happen, but most important will be the actions we subsequently take in Australia to pressure the Australian Government to ratify this Convention.

I have attached links to the concept note and programme for your information. I also attach a link to a copy of the Convention for reference. I hope you will some find time, now or later, to examine it and compare the rights in that treaty with the rights identified in the Declaration.

ILO Convention was drafted in 1989. Participation by Indigenous Peoples delegations was paramount. This is not a great surprise because the International Labour Organization is a tripartite body, representing States, Business and Unions. It therefore can be seen to have a more ‘liberal’ operation than the UN which is comprised only of States as members.

The ILO did make a lot of ground in the drafting of the Convention but in the final stage the Indigenous Peoples’ delegations walked away and refused to endorse it, because ‘self determination’ was abandoned in the final version of the treaty. While ILO Convention No. 169 does make reference to Indigenous ‘Peoples’ in its text, that reference is qualified by a caveat in the Convention which states in Article 1(3):

“The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.”

This late insertion into the draft of the Convention, effectively nullifying the recognition of self-determination, caused a huge reaction and as a result Indigenous Peoples abandoned support. This means very few States have proceeded to ratify the Convention. At the moment, 25 years since it’s adoption, the Convention has been ratified by only 20 countries in the past 25 years. This low rate of ratification persists event though the UN General Assembly and many human rights bodies have regularly called upon relevant States to ratify the Convention. The low rate of attention to the Convention, and poor uptake, is because the Indigenous Peoples have historically separated from the treaty.

Since the Declaration on the Rights of Indigenous Peoples was adopted there is no longer a concern that Article 1(3) avoids interpretation of the law on self-determination. The Declaration itself leaves no doubt that the right of self-detemination is the right enjoyed by ALL PEOPLES of the world. ILO Convention No. 169 no longer has risk about our identities.

The recent World Conference on Indigenous Peoples has also resulted in a resolution by the General Assembly, as part of the actions to implement the Declaration, for Member States to adopt ILO Convention No. 169.

Australia has received many recommendations through the human rights treaty bodies to ratify the Convention. To date Australia has ignored this request. In 2011 Australia was urged by the process of the Universal Periodic Review (UPR) – a wholesale review of a country’s human rights performance by its peers (member States of the UN) – to ratify ILO Convention No. 169. Australia returns for examination under UPR in 2015, at which time Australia will be asked for its efforts to implement the treaty. As far as I am aware Australia has taken no steps to consider the treaty. This inaction will be one of the things that will get my close attention in the months ahead.

I have tonight tried to read the website of the Australian Council of Trade Unions (ACTU) to see what actions ACTU is taking for ratification of the treaty but there does not seem to be any reference. I will endeavour to communicate with the ACTU to find out if they have a policy for ratification of this instrument.

This seminar will be discussing the means to put the international recommendation into good effect. I will try to report throughout the seminar on our discussions.

regards
Les Malezer

CONVENTION – https://www.dropbox.com/s/8s0mybv83aeb3rk/Convention%20169.pdf?dl=0
CONCEPT NOTE – https://www.dropbox.com/s/ichtua6wuduu5ow/concept%20note.pdf?dl=0
PROGRAMME – https://www.dropbox.com/s/lna6neoo4gdvnpv/Preliminary%20Programme.pdf?dl=0 >

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