NSW Aboriginal State Wide Conference 2011

'Be Informed, Be Involved, Be Inspired'

Keynote Speech by James Anaya, UN Special Rapporteur on the Rights of Indigenous Peoples

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.