Keynote speech by James Anaya at the New South Wales Aboriginal Land Council conference

Keynote Speech by James Anaya,
United Nations Special Rapporteur on the Rights of Indigenous Peoples,
at the New South Wales Aboriginal Land Council Conference
"Be Informed, Be Involved, Be Inspired"

Speaking Notes

5 April 2011

Introduction

First of all, I would like to acknowledge and pay my respects to the
traditional owners of this land, and to their ancestors as well as
their future generations. It's very much my honor and privilege to be
here to participate in this event. I would like to thank the New South
Wales Aboriginal Land Council for inviting me. This is my first time
back in Australia and New South Wales since I carried out a mission to
the country in 2009 in my capacity as UN Special Rapporteur. I am
grateful for the opportunity to return to Australia and look forward
to spending the next couple of days with you here. This event
represents an important opportunity for aboriginal people in New South
Wales and others to come together and share experiences, identifying
positive developments and building upon them, in order to meet the
challenges that indigenous people continue to face in Australia.

United Nations Declaration on the Rights of Indigenous Peoples

This event also comes at an important time for indigenous peoples
internationally. In the past decade, there have been major
developments and achievements in the international indigenous rights
movement, including the adoption of the United Nations Declaration on
the Rights of indigenous peoples. I have been asked to speak about the
Declaration and about my work as United Nations Special Rapporteur in
promoting the Declaration.

In doing so I'd like to linkup with the theme of this conference: "Be
Informed, Be Involved, Be Inspired." I hope to assist with your
becoming informed about the UN Declaration on the Rights of Indigenous
Peoples and about the international system of which it is part. I hope
to help motivate continued and further involvement at the
international level in regards to indigenous issues. And I hope to
help reveal or deepen understanding about the Declaration as a source
of inspiration for advancing the rights of your own people and other
indigenous peoples around the globe.

The adoption and basic content of the Declaration

The adoption of the Declaration by the General Assembly three and a
half years ago marks the culmination of three decades of a standard-
setting process involving States and indigenous peoples, and marked
the end of years of study and joint work between governments,
indigenous peoples and experts from around the world. By adopting the
Declaration, the UN proclaimed what should have been stated long ago,
but was not widely accepted by the dominant actors among the states of
the world: that indigenous peoples and individuals, their cultures and
ways of life, are equal to all others in dignity and value; and that
indigenous peoples, like all other peoples, have the right to self-
determination.

The Declaration provides broad recognition of indigenous peoples'
individual and collective rights under the overarching thrust of the
rights to equality and self-determination. It affirms a number of
rights in areas of special significance to indigenous peoples'
survival under conditions of respect and equality vis-à-vis others,
including self-government and participation, including consultation
and consent; cultural and spiritual heritage; lands, territories and
natural resources; and development and social services.

Key characteristics

To understand the significance and scope of the Declaration, I
believe, is to understand its key characteristics, which include the
following:

• Legitimacy: The Declaration finds its legitimacy in both its
approval by the United Nations General Assembly and its grounding in
the worldwide indigenous movement. The Declaration is the product of
the efforts of indigenous peoples themselves dating back to the
arrival of Deskaheh, an Iroquois chief, at the League of Nations in
Geneva 1920s. In the 1970s indigenous peoples from around the world
began arriving at the United Nations in ever greater numbers, pressing
their common demands. Indigenous peoples themselves became actively
involved in drafting of the Declaration, ensuring that it would
reflect their aspirations.

On September 13, 2007, the General Assembly approved the Declaration
and the common understandings of indigenous peoples that it
represented. It did so by an overwhelming majority of the UN member
states. Worldwide, any State opposition to the Declaration originally
expressed when it was adopted in 2007 has been decreasing, indicating
that the Declaration and its justifications are increasingly better
understood. Each of the countries that voted against the Declaration
at the time of its adoption by the General Assembly in 2007, including
of course Australia, and also Canada, the United States and New
Zealand, have since reversed their opposition and have expressed
support for the instrument.

• The Declaration is a Human Rights Instrument: The Declaration is
grounded in human rights principles of universal applicability. As I
have underscored in the past, the Declaration does not establish new
or special human rights in a fundamental sense. Rather, it affirms
basic human rights principles that are applicable to all and
elaborates upon them in the specific historical, cultural, political
and social context of indigenous peoples. In particular it takes into
account the collective dimensions of the exercise by indigenous
peoples of basic human rights. Core human rights principles in the
Declaration, as already pointed out, are equality and self-
determination. The Declaration contextualizes these rights in
accordance with indigenous peoples collective experiences and
aspirations. Another example is the right to property with translates
into specific collective rights over lands and resources in accordance
with their traditional patterns.

• Advances a new model of Human Rights. The recognition of collective
rights in the Declaration advances a new model of human rights, one
that is linked of vision of a multicultural state. This model of
collective rights within a multicultural state is one that departs
from Western liberal thinking that has dominated conceptions of human
rights at the state and international levels. The Western liberal
model has strongly preferred the consolidating of culturally
homogenous societies with the promise of individual rights within such
societies. Hence in Australia and elsewhere, indigenous cultures and
their own forms of organization and landholding were not valued and
indeed were the targets of extermination. What was deemed best for
indigenous peoples was assimilation into the dominant social fabric
and the eradication of inter-generational indigenous identity. The
starkest manifestation of this in many countries was the taking of
indigenous children from their families and communities. The
Declaration posits a very different model, on that values cultural
diversity and sees human rights in those terms.

• An instrument of reparation and reconciliation: The Declaration is
fundamentally a remedial instrument, aimed at overcoming the
marginalization and discrimination that indigenous peoples
systematically have faced across the world as a result of historical
processes of colonization, conquest and dispossession. The Declaration
is also a reminder that these processes and their legacies persist and
are reproduced today in various forms, and it calls upon States and
the international community as a whole to put an end to these
processes and take affirmative measures to implement the human rights
that indigenous peoples have been denied.

A blueprint for change – and the challenge of implementation

With these characteristics, the Declaration is an historic document
that represents a blueprint for change for indigenous peoples, change
from the oppressive past and the ongoing manifestations of that
oppression. The Declaration inspires and motivates movement toward a
world in which indigenous peoples basic human rights are respected in
accordance with the Declaration's terms. But it is one thing to have
achieved the Declaration and its blueprint for change, it is quite
another thing to see that Declaration implemented so that real change
for the better comes about in the everyday lives of indigenous peoples
in places they live. While some progress has been made in many
countries toward implementing the Declaration's terms, much remains to
be done, as I am constantly reminded in my work as UN Special
Rapporteur.

Implementation of the Declaration must ultimately come about at the
local level, through cooperative efforts between indigenous peoples
and the government authorities of the countries in which the live. The
New South Wales Land Council and its constituent land councils,
therefore, have a key role to play in demanding and working toward the
implementation of the Declaration, through determined, practical
efforts. And the government of Australia, like governments across the
globe, should do its utmost to follow and make into reality the
Declaration's terms.

The work of the UN Special Rapporteur on the Rights of Indigenous
Peoples – an international mechanism to assist with implementation of
the Declaration

While implementation of the Declaration primarily requires concerted
action at the country level, a number of international mechanisms
exist that can assist in this regard, including the mandate of the UN
Special Rapporteur on the Rights of Indigenous Peoples, which is the
position I now hold.

I would like to now turn to telling you a bit about my work as Special
Rapporteur and some of the challenges I have seen indigenous peoples
continue to face in various parts of the globe.

The mandate of the Special Rapporteur within the UN system and in
relation to other mechanisms

The mandate of the Special Rapporteur on the Rights of Indigenous
Peoples is one of the thematic special procedures of the Human Rights
Council—the main human rights body of the United Nations, which is
made up of 47 UN member states. Some 30 thematic special procedures
mandates have been established regarding various human rights areas,
such as violence against women, migrants, education, food, housing,
extreme poverty, torture, freedom of expression, and others. In 2000,
the mandate of the Special Rapporteur on the Human Rights and
Fundamental Freedoms of Indigenous People was established to monitor
conditions and promote the human rights of indigenous peoples
worldwide. In recently extending the mandate, the Human Rights Council
simplified its title to Special Rapporteur on the Rights of Indigenous
Peoples. I am the second person to fill this mandate, the first being
Professor Rodolfo Stavenhagen from Mexico, who held the position from
2001-2008.

As Special Rapporteur, I function as an independent expert, reporting
to the Human Rights Council.

My mandate as Special Rapporteur is one of three United Nations
mechanisms specifically related to indigenous peoples. The other two
are the Permanent Forum on Indigenous Issues established in 2000 and
the Expert Mechanism on the Rights of Indigenous Peoples, established
in 2008. If we examine the background to the creation of each of the
three mechanisms, we can see that they were developed in response to
different historical and political contexts and the demands of the
indigenous peoples' movement. As a result, their specific mandates
overlap somewhat.

The Permanent Forum is an advisory body of the Economic and Social
Council made up of 16 members, with a mandate to discuss indigenous
issues related to economic and social development, culture, the
environment, education, health and human rights. An important thrust
of the mandate of the Permanent Forum is to orient the United Nations
on the issues related to indigenous peoples, and specifically to raise
awareness and promote the integration and coordination of activities
related to indigenous peoples throughout the UN system. The Permanent
Forum holds its annual session each year in New York City, and is
attended by thousands of indigenous peoples from around the world.

As for the Expert Mechanism, it is a subsidiary body of the UN Human
Rights Council, made up of five experts, who to date have all been
indigenous people. It has a mandate from the Human Rights Council is
to provide the Council with thematic expertise on the rights of
indigenous peoples, primarily through studies and research-based
advice. It has carried out one study on education and is currently
completing a study on indigenous peoples' participation, and I have
provided input on both of those studies.

While the Permanent Forum, Expert Mechanism, and I as Special
Rapporteur have different roles, a common purpose that joins us is to
advance the human rights of indigenous peoples throughout the world.
Clearly an important point of reference for pursuing this common
purpose is the United Nations Declaration. The three mechanisms
coordinate and strive to be mutually reinforcing in our work, to build
understanding about the meaning and practical reach of the
Declaration, and ultimately to advance its full implementation.

Areas of work

During my nearly three years on this mandate, I have engaged in a
range of activities to monitor the human rights conditions of
indigenous peoples worldwide and to promote steps to improve those
conditions, within the normative framework of the Declaration on the
Rights of Indigenous Peoples. Work in my mandate falls within four
principle spheres, promoting good practices, country reports, cases of
allegations of human rights violations, and thematic studies, which I
will describe briefly.

1. Promoting good practices

An important area of my work follows from the directive given me by
the Human Rights Council to identify and promote best practices. In
this connection I have worked to advance legal, administrative, and
programmatic reforms at the domestic level to implement the standards
of the United Nations Declaration on the Rights of Indigenous Peoples
and other relevant international instruments, on occasion in response
to specific requests made by Governments for technical and advisory
assistance. Through my work, I have been promoting positive
developments and indentifying models of reform that can be applied in
various contexts.

In an example of my work to promote good practices, I just returned
from a visit to Suriname, a small country and former Dutch colony in
South America, which requested my technical and advisory services
(dating back to 2008) to assist in developing a law to protect the
rights of indigenous and tribal peoples in the country. Alongside the
indigenous inhabitants of the country are the Maroon people – a tribal
people made up of the the descendents of escaped African slaves, who
formed culturally distinctive societies in deeply-forested interior
region of the country hundreds of years ago.

The request to me to visit the country was initiated by the Minister
of Regional Development of Suriname, who is charged with the
responsibility to implement the judgment of the Inter-American Court
in the case of Saramaka People v. Suriname, a case involving the
Saramaka Maroon groups, which is one of the principal indigenous land
rights and consultation cases to come out of the Inter-American
system. During my visit to Suriname, I met with Government
representatives and indigenous and Maroon groups to gather input on
their priorities in advancing indigenous and tribal land rights, and
to understand how they viewed my participation in this regard. In the
coming weeks, I will be sending my comments on to assist with the
development of a legal framework to recognize indigenous peoples'
communal tenure rights, their right to juridical personality, and
their right to effectively participate in decisions that affect them.
This initiative also furthers one of my objectives as Special
Rapporteur to reinforce decisions of other international human rights
mechanisms, in this instance the Inter-American Court of Human Rights

I am also currently very interested in gathering examples of good
practices regarding natural resource and development initiatives
operating in indigenous land, including indigenous-run initiatives.
And I understand there are several good examples of here in New South
Wales and I am looking forward to hearing more about those in the
coming days.

2. Cases of alleged human rights violations

Apart from reporting generally on country situations, another and
perhaps the principal area of my work involves responding, on an
ongoing basis, to alleged violations of the human rights of indigenous
peoples in specific cases. Every day, I receive information about
cases of alleged human rights violations in countries on every
continent and, in response, sent numerous communications to
governments about these situations.

These cases involve infringements of the principle of free, prior and
informed consent, especially in relation to natural resource
extraction and displacement or removal of indigenous communities;
denial of the rights of indigenous peoples to lands and resources; the
situation of indigenous peoples in voluntary isolation; incidents of
threats or violence against indigenous peoples and individuals; and
concerns about constitutional or legislative reforms in indigenous
subject matter, among other situations.

I forward the information received to the government concerned, along
with a request that the government respond. In some cases, I have
issued public statements calling attention to or expressing concern
over the human rights violations alleged. As I have done in several
cases, I may conduct an on site visit to examine the situation and
issue in-depth observations with analyses and recommendations that I
hope will be of use to the governments and indigenous peoples concerned.

I have done these in-depth observations following an on site visit in
a case of the construction of a hydroelectric dam in Panama, which
involved the removal of indigenous peoples in four communities that
live along the river to be flooded; a situation in Peru involving a
violent clash between indigenous protestors and police, which resulted
in numerous deaths; and a case involving a gold mine in Guatemala.

This last case is a highly contentious case involving the operation of
a gold and silver mine in lands that were previously used and occupied
by indigenous Maya people in the densely populated western highlands
region of the country. I carried out visit last June and held meetings
across the country attended by thousands of indigenous people. During
early part of the decade, the Guatemala issued a concession to the
Canadian company Goldcorp without consulting with the indigenous
communities in the area; Goldcorp acquired lands for gold mine through
purchasing land from individual land owners. The mine has been in
operation for several years and there has been growing concern among
the communities about the potential negative health and environmental
effects of the mine; the affected communities do not trust the
extensive reports carried out by the company and the government
showing that there are no significant negative environmental and
health effects. Absent any consultation by the Government or Goldcorp,
the communities around the mine organized what they call "good faith
consultations", during which community members voted referendum-style
about whether they wanted the mine; the vast majority voted "no."

In my report on the case, I recommended that an independent study be
carried out to assess (1) the environmental and health effects of the
mine, and (2) the social impacts of the mine, including its effects on
the rights of indigenous peoples in surrounding communities to lands
and resources, and their right to be consulted about decisions
affecting them. I also recommended that a new consultation process be
carried out. The case has gone before the Guatemala Supreme Court and
the Inter-American Commission on Human Rights, and the situation on
the ground remains tense, with the mine continuing operations; the
company has recently initiated round table discussions with the
surrounding communities, with the goal of addressing some of their
outstanding concerns, although significant opposition to the mine
remains

Later this month, I will travel to Costa Rica to look into the
situation surrounding the construction of a dam in an area used and
occupied by the indigenous Térraba group. I include all of these
communications, along with the responses received by governments, and
relevant observations and recommendations in an annual report to the
Human Rights Council which is also made public.

3. Country reports

A third area of my work involves investigating and reporting on the
overall human rights situation of indigenous peoples in selected
countries. The country reports include conclusions and recommendations
aimed at strengthening good practices, identifying areas of concern,
and improving the human rights situations of indigenous peoples. The
reporting process typically involves on site visits to the countries
under review, during which I interact with government representatives,
indigenous communities from different regions, and a cross section of
civil society actors that work on issues relevant to indigenous peoples.

Since taking up my mandate, I have completed reports with
recommendations on numerous countries in all continents, and have also
carried out several follow up visits to countries visited by my
predecessor, Professor Rodolfo Stavenhagen. These visits include
Brazil and Nepal in 2008; Botswana, Chile, Colombia, Australia, and
the Russian Federation in 2009; the Sápmi region (the indigenous
territory of the Sami people) in Norway, Sweden and Finland, New
Zealand and the Republic of Congo in 2010; and so far this year, the
French territory of New Caledonia.

One of my more recent visits was to the Republic of Congo, in November
last year. The term "indigenous peoples" in Congo applies to those
groups that live throughout the Congo Basin in Africa and have been
known collectively as Pygmies; these groups are distinct from the
majority Bantu ethnic groups, and a defining feature of these groups
is their exclusion and marginalization from mainstream social and
economic patterns and political power. Government has developed and
subsequent to my visit, enacted, a law on the rights of indigenous
peoples in the country, containing provisions affirming indigenous
peoples rights to land, participation, education, health, and other
rights. This law is the first of its kind on the African continent,
and it provides an important example of a good practice in the region
for the recognition and protection of the rights of indigenous
peoples. Still, many serious issues of disenfranchisement persist. My
report, which is currently pending comments from the Government, makes
a series of recommendations to address these conditions of
marginalize, focused on the need to including indigenous peoples
themselves in the development and implementation of any measures. Also
recommended broad education campaign among general population to raise
awareness about indigenous peoples in Congo, and counter the extreme
discriminatory attitudes that persist against these groups

I would now like to make few remarks about my report on Australia,
which was based on my visit in 2009 and released last year. The report
provided an overview of the main human rights issues affecting
Aboriginal and Torres Strait Islander people, and included a special
appendix dedicated to an analyzing the human rights concerns related
to the Northern Territory Emergency Response. During my visit to
Australia and as reflected in my report, I could not help but note
that Aboriginal and Torres Strait Islander peoples today endure severe
disadvantage compared with non-indigenous Australians. This is a
result having suffered a history of oppression and racial
discrimination, including acts of genocide, such as the removal of
indigenous children from their homes, as well as the dispossession of
their lands.

I observed that the Government of Australia is to be commended for its
several initiatives and programmes of recent years to address the
human rights of Aboriginal and Torres Strait Islander peoples,
including the "National Apology" of 2008, and its support for the
United Nations Declaration on the Rights of Indigenous Peoples. I was
also pleased to note the important goal set and resources committed by
the Government to eliminate significant social and economic
disadvantages faced by Aboriginal and Torres Strait Islander peoples
in key areas including early childhood, schooling, health, economic
participation, healthy home, safe communities, and governance and
leadership, by the year 2020.

Nevertheless, in my report I concluded that, there is a need to
incorporate into Government program a more integrated approach to
addressing indigenous disadvantage across the country, one that not
just promotes social and economic wellbeing of indigenous peoples, but
that also advances their self-determination and strengthens their
cultural bonds. I stressed that the Government should seek to fold
into its initiatives the goal of advancing indigenous self-
determination, in particular by encouraging indigenous self-governance
at the local level, ensuring indigenous participation in the design,
delivery, and monitoring of programmes, and promoting culturally-
appropriate programmes that incorporate or build on indigenous
peoples' own initiatives. Additionally, further efforts are needed to
secure indigenous peoples' rights over lands, resources and heritage
sites.

4. Thematic studies

A final area of my work involves conducting or participating in
studies on issues or themes that are of interest to indigenous peoples
across borders and regions of the world. Since assuming my mandate, I
participated in several thematic seminars organized by United Nations
agencies, and civil society including indigenous organizations, and
other stakeholders, on specific thematic issues.

In addition, I devoted my first annual report to the Human Rights
Council and to the General Assembly on the significance of the
Declaration on the Rights of Indigenous Peoples; my second annual
report to the Human Right Council on the duty of States to consult
with indigenous peoples on matters affecting them; and my third annual
report on the duties of businesses enterprises to respect and protect
the rights of indigenous peoples, when carrying out activities that
affect them, including activities taking place within indigenous
peoples' lands and territories.

I am currently carrying out a study on the rights of indigenous
peoples in relation to natural resource extraction and development
projects affecting them, in light of the high level of information I
have received from indigenous peoples expressing concerns about this
issue. I will be building upon my previous reports on consultation and
the duties of businesses, in order to provide an analysis of the
effects of natural resource extraction and development projects on the
rights of indigenous peoples, as well as an assessment of the
responsibilities of States, corporations and indigenous peoples in
this context. An important component of this study will be the
eventual development of a set of guidelines directed at States,
corporations and indigenous peoples on the duty to consult with
indigenous peoples in relation to natural resource extraction and
development projects.

Concluding remarks

The New South Wales Aboriginal Land Council and other aboriginal land
councils throughout Australia are carrying out the important work,
what could be described as a good practice, of securing land rights
and developing aboriginal lands to provide greater opportunities to
indigenous peoples. This work is essential to operationalizing the
standards set forth in the United Nations Declaration and to move
forward in a future in which indigenous peoples are in control of
their development, participating as equal partners in the development
process.

I believe it is extremely important for those indigenous groups that
have achieved notable successes in advancing their rights, such as the
New South Wales land councils, to share their experiences with other
indigenous peoples around the world. Keeping in line with the theme of
this conference, I hope that you can inform indigenous peoples around
the world about the lessons you have learned in the process of
advancing your rights, that you can continue and enhance your
involvement in the international indigenous rights movement, and that
you can help inspire the development of new strategies for meeting the
challenges indigenous peoples continue to face around the globe.

Thank you for the opportunity to speak with you today, and I welcome
any questions that you might have for me.

(Provided by Les Malezer, les.malezer@gmail.com)