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Solonec, Tammy --- "UN Mechanisms for Indigenous Peoples: A Personal Account of Participation in 2010" [2010] IndigLawB 23; (2010) 7(19) Indigenous Law Bulletin 8


UN Mechanisms for Indigenous Peoples: A Personal Account of Participation in 2010

Tammy Solonec

This year I had the honour of participating in two United Nations (‘UN’) mechanisms specifically for Indigenous peoples: the Permanent Forum on Indigenous Issues (‘UNPFII’), held in New York from 19-30 April and the Expert Mechanism on the Rights of Indigenous Peoples (‘EMRIP’) held in Geneva from 12-16 July.

A Brief History of the UNPFII

The UNPFII was created to combat the ‘voice denied’ to Indigenous peoples in the UN. Because the UN historically focused on international dialogue and cooperation between nation states, Indigenous nations, as minorities within states, were often excluded from its processes. Also, because of widespread oppression and discrimination, rarely did an Indigenous person rise to a position of diplomatic seniority, which would afford the opportunity to participate in UN meetings.

Discussions to create a ‘voice’ for Indigenous peoples within the UN began taking shape in the 1980s, although Indigenous peoples had attempted to access the UN since the 1920s.[1] After discussions at the 1993 World Conference on Human Rights in Vienna,[2] it was recommended that the UNPFII be established within the framework of the first UN International Decade of the World's Indigenous Peoples (1995-2004). An initial workshop in Copenhagen discussed establishing the UNPFII in 1995,[3] followed by a second workshop in Chile in 1997.[4] Finally, in 2002, the first UNPFII was held in New York.

The UNPFII is now an annual, two-week meeting where Indigenous peoples the world over come together to discuss matters of importance. Although an annual meeting, it runs in a two year cycle, with a theme year, followed by a year of review. The UNPFII is an advisory body to the UN Economic and Social Council with a mandate to discuss Indigenous issues related to economic and social development, culture, the environment, education, health and human rights.[5] There are 16 members, eight of whom are nominated by Government and eight of whom are nominated by Indigenous peoples.[6] The UNPFII is open to all Indigenous peoples, regardless of their status, although all participants must be able to fund their attendance or be sponsored through the voluntary fund.[7]

The Ninth Session of UNPFII (2010)

The theme for the 2010 session of UNPFII was ‘Indigenous Peoples: Development with Culture and Identity’ focussing specifically on Articles 3 and 32 of the UN Declaration on the Rights of Indigenous Peoples (‘the Declaration’).[8]

I was sponsored to attend UNPFII as an Oxfam Australia youth delegate. This program is aimed at helping Aboriginal and Torres Strait Islander young people to develop a better understanding of and to become actively involved with the UN system.[9] I was one of five youth delegates. The others were: Kathryn Stone, the Executive Officer from the South Australian Aboriginal Advisory Council; Rebecca McGrath, a lawyer from the Legal Aid Commission of New South Wales; Leah Pitt, a Torres Strait Islander woman based in Perth and currently studying international relations; and Oxfam Australia employee Rebecca Smith, who coordinated the Oxfam delegation. Two additional youth delegates, Josh Hollingsworth and Teela May, were also present, although they participated as part of the Commonwealth Government delegation.

But it was more than just the seven of us. The Australian Indigenous delegation numbered about 40, including established leaders such as Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner; Dennis Eggington, Chief Executive Officer (‘CEO’) of the Aboriginal Legal Service of Western Australia (‘ALSWA’); Neil Gillespie and Sandra Miller, CEO and board member of the Aboriginal Legal Rights Movement in South Australia; Beverley Manton and Geoff Scott, Chair and CEO of the New South Wales Aboriginal Land Council (‘NSWALC’); Dea Theile and Justin Mohammed, CEO and Chair of the National Aboriginal Community Controlled Health Organisations; Brian Wyatt, Chair of the National Native Title Council; Rodney Dillon of Amnesty International Australia (‘AIA’) and Les Malezer of the Foundation for Aboriginal and Islander Research Action. There was also a number of up and coming Indigenous leaders including David Lee from NSWALC; Katie Kiss and Margaret Raven from the Australian Human Rights Commission (‘AHRC’); Sheena Graeme of AIA and Janine Gertz of James Cook University.

Most of the Australian Delegates came from organisations that are members of the Indigenous Peoples Organisations (‘IPO’) Network of Australia, a loose network of Aboriginal and Torres Strait Islander non-government organisations that are active internationally.[10]

Coordinating such a large and diverse delegation was challenging but we did well. Prior to the UNPFII, we participated in preparatory IPO meetings where several interventions were drafted and circulated for comment. The Diplomacy Training Program[11] also ran a two-day session and invited less experienced members to attend. At the session, we were fortunate to receive training from experienced Indigenous international law experts including Mick Dodson, a member of the UNPFII between 2006 and 2010 and the UNPFII Rapporteur for 2010, as well as Megan Davis, who was recently elected to the UNPFII.

A significant amount of the preparatory meetings was spent discussing whether the IPO would enter into a joint statement with the Australian Government, as had occurred in 2009. There was heated debate about this issue. It is rare for Indigenous peoples to submit joint statements with their government; several people argued that it was inappropriate and would only serve the interests of the state. On the other hand, it was argued that a joint statement would provide a good platform for improving relations between Aboriginal and Torres Strait Islander organisations and the Commonwealth and would provide a way to acknowledge and encourage positive initiatives with community support. A small group drafted a joint statement based on our discussions at the preparatory meetings, which was then negotiated with the Commonwealth. Although we ultimately decided not to enter into the joint statement because there was too much division amongst IPO members, it was a fascinating process to be involved in.

Each morning during the UNPFII we met for a Caucus meeting of the Australian delegation followed by a Pacific Caucus meeting, as Australia forms part of the Pacific Region for the purposes of the UNPFII.[12] The purpose of these meetings was to discuss the day’s interventions and other meetings, to decide on speakers and to promote side events.

Interventions are statements spoken by representatives at the UN, which generally should be no longer than three minutes and which need to be submitted in advance for translation into the six official UN languages.[13] This year, the Australian delegation submitted an impressive 18 interventions and contributed to a further four Pacific interventions.

Side events are run outside the main agenda, usually over lunch, and allow Indigenous groups to express concerns or promote successful programs from their countries. AIA ran a powerful side event about the Northern Territory Intervention, which was well attended. I was particularly impressed with Dr Ngaire Brown’s contribution about her experiences working on the ground during the Intervention.

I presented two interventions on behalf of the IPO on the dialogue with the Special Rapporteur[14] and future work of the UNPFII.[15] Presenting interventions entails responsibilities. First, each intervention must be well researched and drafted. They must be logical, coherent and capable of translation into the other languages of the UN. They must also clearly align with the agenda item. The most important part of any intervention is its recommendations, which need to be expressed to apply to all states and not individual countries. Additionally, recommendations must not repeat those made by the UNPFII in previous years, unless the issue is critical and has not yet been adopted by the UN. There is insufficient time for everyone to speak so, once the intervention is finalised, to increase the likelihood of being granted speaking rights, it is best to obtain endorsements from as many organisations as possible and then submit as a joint statement.

An intervention I presented on the Doctrine of Discovery demonstrated some of the behind-the-scenes lobbying that can occur. The Doctrine of Discovery is an American legal construct, similar to the Australian doctrine of Terra Nullius that was used to legally justify the taking of lands from Indigenous Americans.[16] Our intervention recommended that the UNPFII ‘conduct and coordinate a comprehensive review of the Doctrines of Discovery and Terra Nullius and other similar doctrines around the world that have been used as a legal basis to dispossess Indigenous peoples of their lands’ and that ‘the study consider current laws which perpetuate the doctrines, such as the law of inheritance, and make recommendations as to how their impact may be unravelled, including through compensation and reparation schemes’. After the intervention, an assistant to one of the members asked me to make 40 copies and insisted that I distribute it, including directly to the members. The reason became evident when the UNPFII final report was circulated. Our recommendations were reproduced verbatim and it was decided that the next theme for the UNPFII would be the Doctrine of Discovery and its ongoing application around the world to justify colonialism.[17]

The Expert Mechanism on the Rights of Indigenous Peoples

Six weeks after returning from New York, I travelled to Geneva to attend EMRIP, a new UN mechanism for Indigenous peoples, only in its third session. As a subsidiary of the UN Human Rights Council (‘the Council’), EMRIP has a specific mandate[18] to assist the Council in providing thematic expertise on the rights of Indigenous peoples, focusing mainly on studies and research-based advice. EMRIP may also suggest proposals to the Council for its consideration and approval. The Council has appointed five experts who each serve a three-year term and who may be re-elected to serve one additional term.[19]

EMRIP is a smaller meeting than the UNPFII, although it is growing each year. It runs for one week, half the time of the UNPFII. The Australian Delegation was also smaller, consisting of eleven delegates.[20]

Agenda item three focused on the study of the third session of EMRIP, ‘Indigenous Peoples’ Right to Participate in Decision Making’, looking specifically at international best practice and challenges faced. Participants were asked to make interventions that commented on and contributed to a draft report on the topic,[21] which had been circulated to delegates in advance. Speakers were expected to limit their comments to the issues raised in the draft report, a requirement that was strictly enforced. It was heartbreaking to watch as many speakers focused on violations occurring within their own countries instead of the report. A number of speakers were interrupted while delivering their interventions and, if they had strayed from the agenda items, were asked to stop speaking and resume their seat.

I presented two interventions. The first was an IPO joint statement that responded to agenda item three. It was specifically written on behalf of the Aboriginal and Torres Strait Islander Legal Services, but endorsed by all the present Australian Indigenous organisations. I spoke about law and justice and how we are often not consulted or considered by government agencies when drafting laws that have a disproportionate impact on our communities or that affect us directly. We called for constitutional reform, dedicated seats in Parliament and parliamentary scrutiny of bills.

The second intervention I presented was on behalf of the IPO for the fourth agenda item, which concerned the implementation of the Declaration. We discussed the positive advances made by the Australian Government, including the announcement of the human rights framework and the development of the National Congress of Australia’s First Peoples. However, we expressed our dissatisfaction at the decision not to proceed with a Human Rights Act[22] and warned the Commonwealth Government against making the National Congress the sole form of consultation with Aboriginal and Torres Strait Islander people.

EMRIP allowed much closer interaction between the Australian delegates and more time for interaction with Indigenous peoples from other parts of world. Unlike UNPFII, it also enabled deeper consideration of the specific study, rather than requiring that delegates spread ourselves across numerous international issues. Further, shortly before EMRIP, I was invited to participate in a training program at the UN Institute of Training and Research.[23] The program focused on on enhancing conflict prevention and peacebuilding capacities for Indigenous representatives. Brian Wyatt also attended from Australia, along with about 30 Indigenous activists from all over the world. This experience taught me to ‘think outside the square’ in terms of resolving conflict. The close interaction with other Indigenous peoples during this week, and over the course of EMRIP, assisted me to build international allies and better understand the issues being faced by Indigenous peoples in other countries.

Conclusion

Attending the UN this year has been an eye-opener for me. Personally, the best part was the opportunity to interact with and listen to the stories of Indigenous peoples the world over. I have come to realise that the plight of our peoples and the horrors of colonisation are shared by many. Connecting with international advocates has helped me to begin to really understand solidarity.

I would like to acknowledge Oxfam Australia for supporting my attendance at UNPFII and the AHRC, Mallesons Stephens Jaques, Allens Arthur Robinson and the Greens Party for sponsoring my attendance at EMRIP. I would also like to acknowledge the support of my employer, ALSWA and in particular, our Human Rights and International Law Solicitor, Seranie Gamble. Finally, I must thank my family for their ongoing support, especially in caring for my children whilst away.

Tammy Solonec is a Nyikina woman from Derby in the Kimberley, Western Australia. She grew up in regional and remote WA and has lived in Perth since she was 16. Tammy is currently the Managing Solicitor of the Law and Advocacy Unit at the Aboriginal Legal Service of Western Australia (‘ALSWA’).


[1] In 1923, Haudenosaunee Chief Deskaheh travelled to Geneva to speak to the League of Nations and defend the rights of his people but was not allowed to speak. A similar journey was made by Maori leader T.W. Ratana to protest the breaking of the Treaty of Waitangi in 1925. He was also denied access. See UNPFII, About UNPFII and a Brief History of Indigenous Peoples and the International System, <http://www.un.org/esa/socdev/unpfii/en/history.html> .

[2] See in particular Art20 of the Vienna Declaration and Programme of Action, A/CONF.157/23 (12 July 1993), <http://www.unhchr.ch/huridocda/huridoca.nsf/(symbol)/a.conf.157.23.en> .

[3] Commission on Human Rights, A Permanent Forum for Indigenous People in the United Nations System, UNCHR Res 1996/41 (19 April 1996), available at <http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/2aeecc7e7360b7938025668f00498c29?Opendocument> .

[4] Commission on Human Rights, Report of the Second Workshop on a Permanent Forum for Indigenous People within the United Nations System Held in Accordance with Commission on Human Rights Resolution 1997/30, E/CN.4/1998/11 (19 September 1997), available at <http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.1998.11.En?Opendocument> .

[5] For more information see UNPFII, <http://www.un.org/esa/socdev/unpfii/> .

[6] For more information, see UNPFII, Members of the United Nations Permanent Forum on Indigenous Issues, <http://www.un.org/esa/socdev/unpfii/en/members.html> .

[7] The Fund was established pursuant to United Nations Voluntary Fund for Indigenous Populations GA Res 40/131 (13 December 1985). The General Assembly expanded the mandate of the Fund in International Decade of World’s Indigenous People, GA Res 56/140 (19 December 2001) to assist representatives of Indigenous communities and organisations attend the UNPFII. See Office of the High Commissioner for Human Rights, United Nations Voluntary Fund for Indigenous Populations <http://www2.ohchr.org/english/about/funds/indigenous/> .

[8] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295 (13 September 2007), see <http://www.un.org/esa/socdev/unpfii/en/drip.html> .

[9]For more information about the Oxfam Australia Youth Program, see <http://www.oxfam.org.au/explore/indigenous-australia/our-aboriginal-and-torres-strait-islander-peoples-program/self-determination-program> .

[10]Contact the AHRC for further information on the IPO, <http://www.hreoc.gov.au/social_justice/internat_develop.html> .

[11] See Diplomacy Training Program, <http://www.dtp.unsw.edu.au/> .

[12] The regions for the Government members of UNPFII are Africa, Asia, Eastern Europe, Latin, Western Europe and Other (which includes Australia). The regions for the Indigenous members of UNPFII are Africa, Asia, Central South America and the Caribbean, Arctic Central and Eastern Europe, Russian and Central Asia, North American and the Pacific (which includes Australia).

[13] Arabic, Mandarin, English, French, Spanish, Russian.

[14]See UNPFII, Ninth Session of the United Nations Permanent Forum on Indigenous Issues, agenda item 4(b) (the dialogue with the Special Rapporteur on the human rights and fundamental freedoms of indigenous people), <http://www.un.org/esa/socdev/unpfii/en/session_ninth.html> .

[15]Ibid, agenda item 7 (future work).

[16]Preliminary Study of the Impact on Indigenous Peoples of the International Legal Construct Known as the Doctrine of Discovery, E/C.19/2010/13 (4 February 2010), see <http://www.un.org/esa/socdev/unpfii/documents/E.C.19.2010.13%20EN.pdf> . For a copy, please contact the WA Aboriginal Legal Service, see <http://www.als.org.au/> .

[17]UNPFII, Report on the Ninth Session (19-30 April 2010), E/2010/43-E/C.19/2010/15 (19 May 2010), see <http://www.docip.org/gsdl/collect/cendocdo/index/assoc/HASH017e/359d5316.dir/PFII_FinalReport_May2010.pdf> .

[18] See Office of the High Commissioner for Human Rights, Expert Mechanism on the Rights of Indigenous Peoples – Mandate <http://www2.ohchr.org/english/issues/indigenous/ExpertMechanism/mandate.htm> .

[19]See Office of the High Commissioner for Human Rights, Expert Mechanism on the Rights of Indigenous Peoples – Experts <http://www2.ohchr.org/english/issues/indigenous/ExpertMechanism/membership.htm> .

[20]They were Brian Wyatt, David Lee, Dea Theile, Geoff Scott, Janine Gertz, Katie Kiss, Les Malezer, Mick Gooda, Patrisha Lawrie, Roy Ah-see and Tammy Solonec.

[21]Expert Mechanism on the Rights of Indigenous People, Progress Report on the Study on Indigenous Peoples and the Right to Participate in Decision-Making, A/HRC/EMRIP/2010/2 (17 May 2010) <http://www2.ohchr.org/english/issues/indigenous/ExpertMechanism/3rd/index.htm>.

[22] See National Human Rights Consultation Committee, National Human Rights Consultation Report (2009). The Federal Government rejected the Committee’s recommendation that Australia adopt a Human Rights Act, deciding instead to implement the National Human Rights Framework, see Commonwealth of Australia, National Human Rights Framework (2010).

[23] See United Nations Institute for Training and Research, <http://www.unitar.org/> .


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