| Introduction |
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This Report is submitted
pursuant to paragraph 35 of General Assembly resolution 53/132
and paragraph 37 of General Assembly resolution 54/154. The Sydney
Meeting on the World Conference against Racism, Racial Discrimination,
Xenophobia and Related forms of Intolerance was convened by the
Aboriginal and Torres Strait Islander Commission (ATSIC), which
is a Non-Government Organisation in category II consultative
status with the Economic and Social Council of the United Nations. |
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The purpose of the Sydney
Meeting was to bring together representatives of the Indigenous
peoples of the region, in particular Australia, New Zealand,
Canada, Hawaii and the United States of America, to formulate
recommendations, concerning racial discrimination against Indigenous
peoples for the forthcoming World Conference Against Racism,
Racial Discrimination, Xenophobia and Related Intolerance, Durban
South Africa August/September 2001. |
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The Secretary-General
of the World Conference Against Racism, Mrs. Mary Robinson, designated
the Sydney Meeting as a satellite meeting of the World Conference.
This Report seeks to provide an overview of the Conclusions of
the Sydney Meeting regarding the situation of Indigenous peoples
and racial discrimination. It also makes recommendations relating
to the place of Indigenous issues in the World Conference procedures,
with particular emphasis on the need for Indigenous participation.
It then sets out the Recommendations to the World Conference
that were developed by the participants at the Sydney Meeting
relating to the core themes of the World Conference. It is proposed
that the Report form part of the conference papers for the World
Conference in order to highlight the seriousness of discrimination
against Indigenous peoples and the need for concerted action
in the context of the Declaration and Program of Action to be
adopted by the World Conference. |
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| Part I
- Background |
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| The United
Nations and Racism |
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One of the guiding principles
of the United Nations is the principle of non-discrimination
on the grounds of race. This principle is clearly stated in the
Preamble of the Charter of the United Nations, which reaffirms
"faith in fundamental human rights, in the dignity and worth
of the human person". Subsequently, the 1948 Universal Declaration
of Human Rights (UDHR) and other international human rights instruments
which specifically refer to this principle have been adopted
by the United Nations. |
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International concern
over racial discrimination led to the United Nations General
Assembly in 1963 adopting a Declaration on the Elimination of
All Forms of Racial Discrimination. In 1965, the General Assembly
provided the world community with a legal instrument by adopting
the International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD). The Convention specifies the
measures that States agree to undertake to eliminate racial discrimination
when they ratify the Convention. |
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Since 1973, the General Assembly
has designated three decades for action to combat racism and
racial discrimination and to ensure support for people struggling
for racial equality. The Program of Action for the Third Decade
to Combat Racism and Racial Discrimination, commencing in 1994,
underlines the pivotal role of human rights education in securing
respect for human rights. It has been marked by a broadened view
of the problem of racism and the realization that every society
in the world is affected and hindered by discrimination. It is
recognised that it is no longer sufficient for the world community
to address conflicts relating to racism as they arise; it is
now necessary to look at the root causes of racism and to make
institutional changes in order to prevent its eruption. |
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In 1997, as part of the Third Decade
to Combat Racism and Racial Discrimination, the United Nations
General Assembly decided (resolution 52/111), to convene a World
Conference Against Racism, Racial Discrimination, Xenophobia
and Related Intolerance no later than 2001. The World Conference
Against Racism is to be held in Durban South Africa from 31 August
to 7 September 2001. |
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| Purpose
of World Conference |
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The World Conference will provide
a unique and important opportunity to create a new world vision
for the fight against racism and racial discrimination in the
new millennium. In order to have a real impact, the Conference
should not only promote greater awareness concerning the scourge
of racism but also lead to decisive action at the national, regional
and international levels in order to help those who suffer daily
from racism and racial discrimination. The World Conference therefore
is intended to be action-oriented, and to focus on practical
steps to eradicate racism, including measures of prevention,
education and protection. It will also endeavour to propose effective
remedies for the victims of racism and racial discrimination. |
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The seven objectives of the World
Conference, as set forth by the General Assembly, are: |
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- To review progress made in the fight against racism
and racial discrimination, in particular since the adoption of
the Universal Declaration of Human Rights, and to reappraise
the obstacles to progress in the field and to identify ways to
overcome them;
- To consider ways and means to better ensure the application
of existing standards and their implementation to combat racism
and racial discrimination;
- To increase the level of awareness about the scourge of racism
and racial discrimination;
- To formulate concrete recommendations on ways to increase
the effectiveness of the activities and mechanisms of the United
Nations through programs aimed at combating racism and racial
discrimination;
- To review the political, historical, economic, social, cultural
and other factors leading to racism and racial discrimination;
- To formulate concrete recommendations to further action-oriented
national, regional and international measures aimed at combating
all forms of racism and racial discrimination; and
- To draw up concrete recommendations to ensure that the United
Nations has the necessary resources for its activities to combat
racism and racial discrimination.
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| Major themes
of the World Conference |
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The elements of the provisional
agenda for the World Conference have been grouped under the following
five themes: |
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CAUSES - Sources, causes, forms, and contemporary manifestations
of racism, racial discrimination, xenophobia and related intolerance;
VICTIMS - Victims of racism, racial discrimination,
xenophobia and related intolerance;
PREVENTION - Measures of prevention, education, and
protection aimed at the eradication of racism, racial discrimination,
xenophobia and related intolerance at the national, regional
and international levels;
REMEDIES - Provision of effective remedies, recourse,
redress, [compensatory] and other measures at the national, regional
and international levels; and
STRATEGIES - Strategies to achieve full and effective
equality, including international co-operation and enhancement
of the United Nations and other international mechanisms in combating
racism, racial discrimination, xenophobia and related intolerance,
and follow-up.
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| Indigenous
participation: |
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Over the past decade, the situation
of Indigenous peoples has gained in visibility, particularly
at the international level. This is due in large part to the
growing advocacy by Indigenous peoples who have been able to
achieve the establishment of procedures and forums for international
cooperation. They also have had increasing success in accessing
and utilizing various international mechanisms, such as the Sub-Commission
on the Promotion and Protection of Human Rights, the Committee
on the Elimination of Racial Discrimination, the International
Labour Organization and the World Bank. However, it is still
the case that Indigenous peoples in their own countries and regions
are among the most marginalized and excluded groups. |
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Over the past 50 years, the international
regime for the promotion and protection of human rights has largely
focused on individual rights, leaving the jurisprudence of collective
rights comparably under-developed. A major obstacle to the full
realization of equality and inclusion by Indigenous peoples is
this emphasis, among States and in the UN system, on individual
rather than collective rights, including the right to land and
resources, to self-determination and autonomy, to development
and to practise culture. Thus, because the most important demands
of Indigenous peoples relate to collective rights, their aspirations
remain misunderstood and unrecognized by the international human
rights regime |
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It is also important that issues
concerning Indigenous peoples are not only addressed as a distinct
and separate category, but are fully integrated into the discourse
on racism and racial discrimination. This is necessary in order
for effective responses to be developed which address institutionalized
racism, globalization, immigration, colonialism, slavery, civil
conflict and internalized racism, as they pertain to Indigenous
peoples. |
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| New York Preparatory
Consultation |
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The General Assembly in February
1999 (Resolution 53/132 paragraph 16) on the Third Decade to
Combat Racism and Racial Discrimination and the Convening of
the World Conference, urged the Secretary General, UN bodies,
all Governments, and non-governmental organisations, to pay particular
attention to the situation of Indigenous peoples. |
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On 10 August 2000, Indigenous representatives
attended a preparatory consultation for the World Conference
held at UN headquarters in New York within the framework of events
for the commemoration of the International Day of the World's
Indigenous people. The consultation formulated a number of recommendations
from an Indigenous perspective, including recommendations on
the use of the term 'peoples', the requirements of existing international
standards for Indigenous peoples to be consulted in good faith
and to give or refuse their informed consent in matters affecting
them, and protection of Indigenous peoples' intellectual property
and cultural heritage, which were to be submitted to the High
Commissioner for Human Rights and Secretary-General for the World
Conference, Mrs Mary Robinson. |
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The New York consultation also endorsed
proposals made in May 2000 by Mme Daes, Chairperson Rapporteur,
Working Group on Indigenous Populations, to the Chairman of the
Preparatory Committee for the World Conference, including that
the World Conference should: |
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- devote a chapter to Indigenous peoples in both the Declaration
and Program of Action;
- invite Indigenous representatives to address the plenary
session;
- have full and representative participation of the world's
Indigenous peoples, including all seminars and regional meetings;
- hold a seminar on Indigenous peoples; and
- conduct parallel activities at the World Conference focusing
on Indigenous peoples and measures aimed at ending discrimination
against them.
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| Sydney Regional
Meeting |
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The Aboriginal and Torres Strait
Islander Commission (ATSIC) hosted a Regional Meeting of Indigenous
peoples of Australia, New Zealand, Canada, Hawaii and the United
States at Sydney University Australia from 20-22 February 2001.
The purpose of the Sydney Meeting was to examine in detail the
issues of racism against Indigenous peoples, with a particular
focus on Australia, New Zealand, Canada, Hawaii and the United
States of America. |
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ATSIC sought the following outcomes
from the Regional Meeting: |
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An overview on discrimination against Indigenous peoples,
with particular relevance to the experience of the Indigenous
peoples of Australia, Canada, New Zealand, Hawaii and the USA;
A forum where participants could foster greater input
into international debates on racism against Indigenous Peoples;
A formal Report to the May 2001 Preparatory Committee
meeting, for inclusion with the conference papers for the World
Conference in South Africa from
31 August - 7 September 2001. The Report to focus on concrete,
pragmatic recommendations developed from an Indigenous perspective
and aimed at combating racism; and
The advancement of partnerships between Indigenous
Peoples and the wider community to implement strategies for overcoming
racism.
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| Part II
- Conclusions |
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The program for the Sydney Meeting
involved plenary sessions, papers, workshops and talking circles
in order to examine the five themes adopted for the agenda of
the World Conference in Durban. The Conclusions of the Meeting
in respect of these five themes are presented below. |
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CAUSES - Sources, causes, forms,
and contemporary manifestations of racism, racial discrimination,
xenophobia and related intolerance: |
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The Indigenous peoples of Australia,
New Zealand, Canada, Hawaii and the USA have through colonization
suffered dispossession and loss of their ancestral lands and
territories. The resources of those lands and territories have
been exploited and developed without reference to the traditional
Indigenous owners, without the consent of those owners, and often
without any of the benefits of such development flowing to Indigenous
peoples. In the process the environment has often been despoiled,
degraded and destroyed. |
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The Indigenous peoples of these
lands have had their laws ignored or suppressed, their religions
denigrated and their people converted, their sacred sites, places
and objects desecrated, and their languages forbidden. Indigenous
traditional knowledge has been exploited and it has been denied
the protection of the laws of their colonizers. |
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Indigenous society has been decimated.
Lands were taken at the point of the gun and resistance resulted
in slaughter and massacre. The skeletal and human remains of
Indigenous peoples have been removed and stowed and exhibited
in Museums and other institutions. Children were removed from
their families to be placed in residential schools, missions
and hostels and with non-Indigenous families. Introduced diseases,
the loss of traditional food sources, forced settlement and re-location,
poor diet and alcohol have resulted in unprecedented levels of
disease and despair. |
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Indigenous peoples by any social
or economic indicator do not have equality with the members of
the dominant societies where they live. They remain severely
disadvantaged and marginalised. For too many Indigenous people,
life is a matter of survival, not enjoyment or achievement. Life
is a struggle to hold onto land, onto culture and onto family.
It is a struggle which has been waged against the odds. |
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The root cause of the discrimination,
which has been suffered by Indigenous peoples and which continues
to affect the lives of Indigenous peoples today is racism. Inherent
in the colonial experience and in the policies of the independent
states, which succeeded the colonies, is the notion or belief
that Indigenous peoples and Indigenous culture are inferior.
It was this belief in the inherent superiority of the civilisations
of the colonists as against the civilisations of the Indigenous
that, for the colonialists, justified and rationalised the widespread
expropriation of Indigenous territories and the whole scale destruction
of Indigenous societies. Racism is the basis of terra nullius
- the idea that a land is empty even when people live there.
Racism is the basis of unequal treaties and broken treaties.
Racism is the basis of the failure to apologise and the failure
to compensate. Racism is the reason that the rights of Indigenous
peoples are not protected by domestic legal systems to the same
degree that the rights of other peoples are protected. |
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The causes of the ongoing discrimination
against Indigenous peoples are summarised in General Recommendation
XXIII adopted by the Committee on the Elimination of Racial Discrimination: |
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- ...in many regions of the world Indigenous peoples have
been, and are still being, discriminated against and deprived
of their human rights and fundamental freedoms and in particular
they have lost their land and resources to colonialists, commercial
companies and State enterprises. Consequently, the preservation
of their culture and their historical identity has and still
is being jeopardised. (Fifty-first session, 1997. See document
A/52/18).
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| 26 |
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In our countries the age of frontier
violence has largely passed. The contemporary manifestations
of racism towards Indigenous peoples are less overt. Nevertheless
serious racism persists. It can be seen in indifference towards
remedying the disadvantage and inequality suffered by Indigenous
peoples, the failure to commit resources at the level required,
and the refusal to acknowledge the wrongs and injustices that
have been perpetrated upon Indigenous peoples and to remedy and
redress these wrongs. This discrimination is deeply embedded
in the social, political and economic fabric of these countries.
It has become systematic and institutionalised. The consequences
have been enormously damaging to Indigenous peoples and it is
a testament to the human spirit that Indigenous societies have
survived and persisted with their claims to respect, dignity
and true equality. To overcome this entrenched discrimination
is a major challenge facing those countries which have Indigenous
populations and the international community. |
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In some countries there is a groundswell
of sentiment for reconciliation amongst the general public and
a desire to throw off the racist legacy of the past. However,
there is a failure of political leadership by political leaders
who seem unable to leave the racist assumptions of the past behind.
Indeed, political leaders sometimes worsen the situation by tacitly
supporting and pandering to simplistic calls for "equality"
of treatment of all citizens. These populist calls attempt to
categorise any special measures or recognition of inherent rights
as discriminatory. As Mr Banton has pointed out (Background Paper
"The causes of, and remedies for, racial discrimination,
prepared for the World Conference (E/CN.4/1999/WG.1/BP.6, paragraph
36)): |
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- ".experience in all regions of the world has since
shown that political elites sometimes advance their own interests
by cultivating popular suspicions of, or hostility towards, other
groups."
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We see aspects of this phenomenon
of populist racism aimed at Indigenous people in politics today.
However, it is incumbent on national leaders that they unambiguously
reject calls to racism, especially where those calls are coded
and disguised in debased versions of formal equality of treatment.
To connive with or give comfort to such notions is a further
betrayal of the Indigenous citizens of the countries concerned. |
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In respect of land, territories
and resources, the full resources of the State and the legal
system are in many situations brought into play to deny, obstruct
and minimise the legitimate aspirations of Indigenous people.
It is in respect of land and sea rights that the ongoing nature
of the deep-seated racism which Indigenous people continue to
face becomes most clear. States fail to give substance to native
title rights in lands and seas and take the opportunity to extinguish
such title where they can. States strenuously oppose the right
of Indigenous peoples to give or deny their informed consent
to proposals that directly affect them, their land and their
resources. Without the right of informed consent there is no
true equality under the law and without it the daily tyranny
of racism and racial discrimination will continue to pervade
the lives of Indigenous peoples. |
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Other contemporary manifestations
of racism include racial vilification and incitement to violence,
including the recent development of the spread of racial hate
via the Internet, and continuing denigration of Indigenous culture
and society. Many States make excuses to avoid their responsibilities
under international standards to provide criminal sanctions against
such behaviour to combat racial prejudice and vilification. |
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VICTIMS - Victims of racism,
racial discrimination, xenophobia and related intolerance |
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The International Convention on
the Elimination of All Forms of Racial Discrimination 1965 (ICERD)
defines the term "racial discrimination" to mean any
distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the purpose
or effect of nullifying or impairing the recognition, enjoyment
or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any
other field of public life (Article1). |
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The human rights and fundamental
freedoms recognised and protected by the international community
are set out in two principal international instruments. They
are the International Covenant on Economic, Social and Cultural
Rights 1966 (ICESCR) and the International Covenant on Civil
and Political 1966 (ICCPR). These two Covenants and the ICERD
have been widely ratified. It is generally accepted that the
international rule of non-discrimination in respect of human
rights has become a peremptory rule of customary international
law (jus cogens) applicable to all States and from which
no derogation is possible. All peoples are entitled to the full
protection and enjoyment of these rights. Where some of the rights
protected by ICESCR may not be able to be enjoyed in full equality
immediately (because of the legacy of historic injustice and
discrimination), States are under an obligation to do all that
they can to achieve the progressive realisation of these rights. |
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| 33 |
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When the situation of Indigenous
peoples are compared to the rights set out in the Covenants and
by the standards mandated by ICERD, it is clear that there continues
to be massive discrimination on the basis of race against the
world's Indigenous peoples. The Sydney Meeting focussed on some
of these areas of discrimination, particularly as they affect
the Indigenous peoples of the region. However, we are convinced
that to a considerable extent this Report also reflects the situation
of Indigenous peoples in other countries. |
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First and foremost, Indigenous peoples
suffer from the failure to extend to them the unqualified right
to self-determination set out in common Article 1 of both the
ICESCR and ICCPR. This right also appears as Article 3 in the
UN Draft Declaration on the Rights of Indigenous Peoples being
considered by the Inter-sessional Open-ended Working Group of
the Commission on Human Rights established under resolution 1995/32.
The right of self-determination for peoples is the foundation
of the international human rights system. Yet States have consistently
refused to acknowledge that this right extends as well to Indigenous
peoples. Various excuses have been put forward by the States,
in particular that their territorial integrity may be endangered.
These concerns have been effectively refuted many times by Indigenous
representatives. |
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The persistence of the refusal of
the States to acknowledge the unqualified right of self-determination
for Indigenous peoples indicates a deep-seated racism at the
heart of the international human rights system. It has enormous
negative consequences across a range of areas that directly affect
the lives and well-being of Indigenous peoples, from control
over Indigenous resources to community involvement in the planning
and delivery of health, welfare and education services. The lack
of autonomy for Indigenous peoples to have control over their
lives is a universal problem for Indigenous peoples. It is, however,
possible for Indigenous communities to recover autonomy through
the right of self-determination. |
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| 36 |
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Closely allied to the failure to
extend the right of self-determination to Indigenous peoples
is the failure of many States to adequately protect the right
to substantive equality of treatment. This right, first enunciated
in Article 2 of the Universal Declaration of Human Rights, is
also contained in ICESCR (Article 2.2) and ICCPR (Article 2).
Substantive equality of treatment cannot be temporary or at the
discretion of governments. The Committee on the Elimination of
Racial Discrimination (CERD) has indicated the need to entrench
non-discrimination in the legal systems of nation States so that
it is not vulnerable to political pressures. |
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It is clear that without such entrenchment
of the prohibition against racial discrimination Indigenous peoples
remain subject to the capricious and arbitrary interference with
their rights that has characterised the history of their relationships
with the dominant societies. Those States which have not provided
such entrenchment of non-discrimination should proceed to do
so if they are to meet their international responsibilities to
Indigenous peoples. |
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| 38 |
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Fundamental to the issues of self-determination
and equality is the right of Indigenous peoples to be consulted
about all matters directly affecting them on the basis of their
right to give or withhold their informed consent. Some States
reject that there is an internationally protected right of informed
consent for Indigenous peoples. However, without such a right
Indigenous peoples remain, in the most fundamental sense, victims
of racial discrimination. Too often Indigenous peoples have been
marginalised by developments on their own lands, they have been
left as by-standers, often suffering severe environmental and
social disruption from development which benefits others, not
themselves. Without effective control over proposed developments
native title and land rights remain a sham. |
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| 39 |
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The right of informed consent is
an emergent rule of international law. A strong link is established
between the right of self-determination for Indigenous peoples
and control over land and resources. This linkage is seen in
ILO Convention 169 Concerning Tribal and Indigenous Peoples.
Articles 14 and 15 provide a significant level of protection
of Indigenous rights in respect of possession, use and management
of Indigenous territories and their resources. When these articles
are read in conjunction with Article 6(2) of ILO 169 (requiring
consultations to be undertaken in good faith with the objective
of achieving agreement or consent), they provide a level of protection
leading to the requirement of informed consent. The jurisprudence
of the Human Rights Committee under Articles 1(2) and 27 of the
ICCPR is also supportive of the right. As well, CERD, in its
General Recommendation XXIII has emphasised the importance of
ensuring: |
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- "that members of Indigenous peoples have equal rights
in respect of effective participation in public life, and that
no decisions directly relating to their rights and interests
are taken without their informed consent".
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It is incumbent on governments to
acknowledge, accept and enshrine the principle that Indigenous
peoples, as peoples, have a right to determine their own futures
and circumstances, and that decisions taken which affect them
should only proceed on the basis of effective participation in
the decision making process and on the basis of the informed
consent of the peoples concerned. |
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In respect of the economic, social
and cultural rights of Indigenous peoples, it has been demonstrated
repeatedly that on relevant indicators such as health, educational
attainment, employment, incarceration rates, housing and infrastructure
etc Indigenous peoples fall significantly short of the protection
and enjoyment of their rights as mandated by ICESCR. Indigenous
peoples are the victims of racism in a multitude of ways that
reduce their ability to have a decent standard of living and
a positive future. |
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| 42 |
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The protection of cultural rights
has particular resonance for Indigenous peoples in Australia,
Canada, New Zealand, Hawaii and the United States. The survival
of Indigenous peoples as distinct societies depends on maintaining
culture and language in the face of enormous difficulties. The
well being of Indigenous peoples and their ability to prosper
and thrive are tied up with the protection and enjoyment of the
distinctive Indigenous cultures. The protection of cultural rights
is required by ICESCR (Article 15). The Committee on Economic
Social and Cultural Rights has made clear the importance of States
parties protecting the cultural rights of Indigenous peoples. |
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| 43 |
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Some of the problems for Indigenous
peoples in respect of the protection of cultural rights are: |
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- Protection of areas and objects of cultural significance
of Indigenous peoples remains inadequate in most instances. Destruction
of sites and objects has caused immeasurable emotional damage
to Indigenous peoples over the years and this remains an on-going
problem.
- Recognition of intellectual property rights in artistic creations
and other cultural expressions and in the biological diversity
of Indigenous territories is largely denied; Indigenous resources
and knowledge are appropriated without agreement or payment;
and commercial exploitation such as genetic modification of plants
or seeds take place without consultation, consent, or financial
payment.
- The implications of the recognition of native title are denied
and native title is defined down as a real estate property right
rather than being a right extending to the plants and animals
that go with the land and the collective and cultural rights
that inhere in native title. Whilst subsistence rights to hunt
and fish may be recognised, Indigenous control over the stocks
of animals and marine creatures is not, and natural resources
are decimated by commercial harvesting. It is not much good having
the right to hunt and fish when there are no animals or fish
left.
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| 44 |
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Overall, the full recognition of
Indigenous title rights in the biological resources of Indigenous
territories, and a comprehensive and adequate regime of protection
for Indigenous intellectual property, need to be developed before
the elimination of discrimination against Indigenous peoples
can be said to have been achieved. These are matters of urgency
and of the highest priority for Indigenous peoples. |
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PREVENTION - Measures of
prevention, education, and protection aimed at the eradication
of racism, racial discrimination, xenophobia and related intolerance
at the national, regional and international levels: |
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| 45 |
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The prevention of racial discrimination
requires legal and educational measures. Article 2 of the UDHR
affirms that "everyone is entitled to all the rights and
freedoms set out in this Declaration, without distinction of
any kind, such as race, colour, sex. etc ". Article 26 of
the ICCPR makes discrimination on the grounds of race unlawful.
And States are required by the ICERD (Article 7) |
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"...to adopt immediate and
effective measures, particularly in the fields of teaching, education,
culture and information, with a view to combating prejudices
which lead to racial discrimination and to promoting understanding,
tolerance and friendship among nations and racial or ethnic groups
.." |
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| 46 |
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CERD member Mr. Michael Banton has
noted in his paper on the causes of, and remedies for, racial
discrimination, that: "State support for the proper implementation
of the International Convention [ICERD] is often lacking".
This is true of measures of prevention, education and protection.
Given that Indigenous peoples have suffered greatly as the result
of racial prejudice including discriminatory laws and policies,
denigration of their cultures and the suppression of the history
of violence, dispossession and deprivation which they have experienced,
the following measures are required for prevention, education
and protection: |
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Acknowledging history |
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| 47 |
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It is in the true account of the
history of the relationship between Indigenous peoples, colonisers
and their successor States that the end of racism and the basis
for reconciliation lies. Whilst the dark history of the subjugation
of Indigenous peoples remains hidden, or trivialised, history
remains little more than a colonialists' fable and a tool for
on-going discrimination. Mature societies face up to their past.
This is starting to happen in some places, but often the search
for the true story is opposed by governments and others, and
the attempt to bring to light the true account of the dispossession
and mistreatment of Indigenous peoples is dismissed or disparaged
as a "black armband" view of history. |
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| 48 |
|
Nation-building myths need to be
exposed. This may be painful for some, but it is the only way
to overcome the racist foundations of countries such as Australia,
Canada, New Zealand, and the USA. It is necessary to face the
history of contact and conflict on the frontier, the massacres
and punitive expeditions, the paternalistic and the repressive
legislation, the forced removal of Indigenous children and infants
from their families and so on. |
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Apology and reconciliation |
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| 49 |
|
Governments must be accountable.
The international principles underlying this process have been
identified by Theodor Van Boven who found that under international
law violation of human rights gives rise to a right of reparation
for the victim. Professor Van Boven has identified the fundamental
types of remedies as restitution, compensation, rehabilitation,
and satisfaction and guarantees of non-repetition (A/CONF.189/PC.1/8
para 54). |
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Combating the voices of hate |
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| 50 |
|
Education can play a central role,
not only in pointing to the fallacy of racist thought and practice,
but also in validating and explaining Indigenous culture to the
wider society. Education must extend beyond the school. Measures
to avoid inequality of treatment should be included in the training
of judges, prosecutors, police, court and prison staff, social
service and health personnel, the armed services, educators themselves,
and many other occupations. States should make a major commitment
to such education. |
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| 51 |
|
Civil society, in particular the
media, trade unions, the churches and sporting organisations
must make a strong commitment to overturn racist views of Indigenous
society. |
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|
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| 52 |
|
However, even with the strongest
commitment of education and goodwill there are those who will
insist on spreading messages of hate and racial vilification
and incite violence against Indigenous peoples and others on
racist grounds. This behaviour is criminal, even where it is
not itself violent. It lays the seeds for violence, and it makes
it impossible for members of those groups to enjoy their rights
and freedoms and to feel secure. The Internet has provided a
tool for extremist groups to spread their message more widely
in what is clearly an abuse of this method of communication. |
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| 53 |
|
Article 4 of ICERD requires States
to punish by law the dissemination of ideas based on racist superiority
or hatred and incitements to racial discrimination as well as
acts of racist violence or incitement to such acts. |
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| 54 |
|
It is shameful that a number of
States have entered reservations in respect of Article 4, citing
"freedom of speech" as their excuse, despite CERD having
stressed the mandatory character of the Article. CERD has concluded
that the prohibition of the dissemination of racist material
is in fact compatible with the right to freedom of opinion and
expression as embodied in article 19 of the UDHR. The General
Assembly and the Commission on Human Rights have called on States
to limit the extent of any reservations they lodge to ICERD,
and to formulate any such reservations as precisely and narrowly
as possible |
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REMEDIES - Provision of effective
remedies, recourse, redress, [compensatory] and other measures
at the national, regional and international levels: |
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| 55 |
|
At the domestic level remedies include: |
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|
| |
- recognition of rights by governments, in particular
the inherent rights of self-determination and of ownership and
control of the territories and resources of Indigenous people;
- restitution and where that is not possible compensation
for lost lands and for disruption and destruction of Indigenous
society;
- apology, and acknowledgement of past injustices as
the basis for genuine reconciliation and co-existence;
- entrenchment of non-discrimination through Constitutional
or Treaty provisions;
- adequate funding and resources to overcome Indigenous
social and economic disadvantage;
- education, training and public information programs
to counter prejudice and discrimination against Indigenous peoples;
and
- laws to prohibit the dissemination of racist and hate
material.
|
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| 56 |
|
At the international level, remedies
include: |
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|
| |
- speedy resolution and adoption of the "UN Draft Declaration
on the Rights of Indigenous Peoples" without further
equivocation over the application of the right of self-determination;
- support for the newly-established Permanent Forum
on Indigenous Issues to establish a forum at the highest
levels of the UN to provide a space for dialogue and partnership
between Indigenous peoples and member States of the UN;
- continuation of the mandate of the Working Group on
Indigenous Populations;
- adequate resources for the UN treaty bodies; and
- genuine acceptance of the monitoring and compliance
role of these bodies by member States.
|
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STRATEGIES - Strategies
to achieve full and effective equality, including international
co-operation and enhancement of the United Nations and other
international mechanisms in combating racism, racial discrimination,
xenophobia and related intolerance, and follow-up. |
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|
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|
Note: The 5th theme, "Strategies",
is covered under the Recommendations of the meeting, as set out
below. |
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| Part
III Recommendations |
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| 57 |
|
The Regional Meeting of Indigenous
Peoples on the World Conference against Racism, Racial Discrimination,
Xenophobia and Related Intolerance held in Sydney Australia,
20-22 February 2001, requests the Secretary General of the World
Conference Against Racism, Mrs Mary Robinson, to ensure that
the World Conference Against Racism to be held in Durban South
Africa: |
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|
| |
- acknowledges in its Declaration and Program of Action
that the declarations and programs of action from previous World
Conferences have not been adequately observed, upheld or implemented,
and that Indigenous peoples continue to suffer from persistent
forms of racism, racial discrimination, xenophobia and related
intolerance, which have resulted in the violation of their fundamental
political, economic, social, and cultural rights, as well as
their rights to lands, territories and resources, including sea
and water rights;
- recognizes and affirms that this continuing history
of abuse and violation of the fundamental rights of Indigenous
peoples has compounded the deterioration of the social, cultural,
emotional, and spiritual well-being of Indigenous peoples and
resulted in their further traumatisation, profound levels of
disadvantage and stress-related biological effects which are
important fundamental causes of disease and ill-health;
- citing the depth and persistence of racial discrimination
against Indigenous peoples:
|
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|
|
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|
- devotes a chapter in both the Declaration and the Program
of Action to Indigenous peoples;
- ensures that the concerns of Indigenous peoples are reflected
in the Program of Action;
- invites Indigenous representatives to address the plenary
session of the World Conference (as recommended by the General
Assembly in Resolution 50/157);
- has full, meaningful, direct and effective participation
of the world's Indigenous peoples;
- holds seminars, during the plenary session of WCAR, in collaboration
with Indigenous peoples, concerning the rights, status and conditions
of Indigenous peoples including seminars on collective rights
at the national and international levels;
- ensures that the Organizing Committee for the NGO Forum
of the World Conference conduct parallel activities at the World
Conference focusing on Indigenous Peoples and measures aimed
at ending racism and racial discrimination against them.
|
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| 58 |
|
The Sydney Meeting also calls upon
the Secretary General for the World Conference, Mrs Mary Robinson,
to ensure that the Declaration and the Program of Action of the
World Conference specifically recognizes, as a matter of dignity
as well as the equal application of international law, that Indigenous
peoples are 'peoples' without any qualification or limitation
being placed upon the use of the term. In the history of debates
on the status of Indigenous peoples in the UN system, the terms,
"populations" and "people", have been used
by some States to avoid recognizing the rights of Indigenous
peoples, including the right to self-determination and our fundamental
collective rights, and thus we recommend that the World Conference
reject the use of the terms, "people", "populations",
and "ethnic minorities" in the context of Indigenous
peoples. |
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| 59 |
|
The Sydney Meeting also calls the
World Conference to recognize that the persistent refusal of
States to acknowledge the unqualified right of self-determination
for Indigenous peoples illustrates a deep-seated racism and that
this failure has had and continues to have enormous negative
consequences across a range of areas that directly affect the
lives and well-being of Indigenous Peoples. |
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|
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In addition, the Sydney Meeting
calls upon the World Conference to adopt the following recommendations
of the Sydney Meeting, which are set out below: |
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|
| |
UN Draft Declaration on the Rights
of Indigenous Peoples |
| |
|
|
| 60 |
|
The Sydney Meeting endorsed the
current text the "UN Draft Declaration on the Rights of
Indigenous Peoples", as approved by the Working Group on
Indigenous Populations and the UN Sub-commission on Human Rights,
which represents the minimum international human rights standards
acceptable to and approved by Indigenous peoples. Accordingly,
the World Conference calls upon States to adopt the "UN
Draft Declaration on the Rights of Indigenous Peoples",
without qualifying the word 'peoples' and recognizing that Indigenous
peoples have the unqualified right to self-determination consistent
with the principles of equality, non-discrimination and the prohibition
of racial discrimination. The World Conference recommends that
such action takes place before the end of the current International
Decade of the World's Indigenous People in 2004. |
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|
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An International Convention on
the Rights of Indigenous Peoples |
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| 61 |
|
The World Conference recommends
the development of an International Convention on the Rights
of Indigenous Peoples to provide a binding instrument in international
law to promote and protect the fundamental rights of Indigenous
peoples |
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|
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Accession to and Ratification
of UN Human Rights Instruments |
| |
|
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| 62 |
|
The World Conference calls upon
States that have not yet done so to accede to or ratify existing
international human rights conventions, including the International
Convention on the Elimination of All Forms of Racism and the
Convention on the Elimination of Discrimination Against Women
and to implement recommendations from the World Conferences on
Women. |
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|
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| 63 |
|
The World Conference calls upon
all States that have not already done so to fully implement the
Genocide Convention as part of their national legal and constitutional
arrangements. |
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|
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| 64 |
|
The World Conference calls upon
States to: |
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|
| |
- withdraw reservations to the ICERD and effectively implement
all commitments under the Convention;
- accept the jurisdiction of the Committee on the Elimination
of Racial Discrimination to consider communications under Article
14; and,
- ensure that criminal sanctions apply to dissemination of
racist propaganda, consistent with Article 4.
|
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Observation of Customary International
Law |
| |
|
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| 65 |
|
The World Conference calls upon
the member States of the United Nations and the United Nations
itself to fully observe the principle of jus cogens or
the established peremptory norms, including the prohibition of
racial discrimination, genocide, torture, slavery, and the trading
in human beings, in relation to all matters concerning Indigenous
peoples. |
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Monitoring Human Rights |
| |
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| 66 |
|
The World Conference calls for increased
use of the international human rights treaty bodies and greater
vigilance in monitoring State actions vis-à-vis such treaty
bodies. Consideration should be given to the development of ongoing,
effective and comprehensive measures for monitoring the human
rights status of Indigenous peoples. |
| |
|
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| 67 |
|
The World Conference calls upon
States and the UN system to strengthen the capacity of the Committee
on the Elimination of Racial Discrimination to monitor compliance
with the International Convention on the Elimination of All Forms
of Racial Discrimination. In particular, this should include
allocating increased resources to facilitate regular in-country
visits, consultations with regional and national bodies, and
technical assistance to States parties in producing their reports
to the Committee. |
| |
|
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| 68 |
|
The World Conference recommends
that regional meetings of Indigenous peoples should be convened
by the UN specifically to address issues of racism, xenophobia,
and discrimination and related intolerance in order to further
the process of constructive international dialogue, to report
on the development of reforms directed at the elimination of
all forms of racial discrimination and to continue the ongoing
task of seeking positive and proactive remedies. |
| |
|
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| 69 |
|
Noting that the world's Indigenous
peoples remain severely disadvantaged as a result of historic
and on-going racism and racial discrimination, the World Conference
proposes that a World Conference on Indigenous Peoples and Cultural
Diversity be convened in the year 2005. |
| |
|
|
| 70 |
|
The World Conference Against Racism
calls for the speedy implementation of the resolution of the
UN General Assembly for the establishment of a Permanent Forum
on Indigenous Issues at the highest level of the UN in order
to comprehensively address issues and concerns of Indigenous
peoples, to ensure that the United Nations, on a system-wide
basis, is responsive to Indigenous peoples' rights, status, and
conditions, to ensure full and equal participation and to provide
a space for dialogue and partnership between Indigenous peoples
and member States of the UN. |
| |
|
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| 71 |
|
The World Conference recommends
the continuation of the mandate of the Working Group on Indigenous
Population. |
| |
|
|
| 72 |
|
The World Conference recommends
the appointment of a Special Rapporteur on the human rights of
Indigenous peoples. The Special Rapporteur should work in close
collaboration with the specialized agencies, bodies and organs
of the United Nations. |
| |
|
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| 73 |
|
The World Conference recommends
implementation of the recommendations contained in the 1989 U.N.
Seminar on "The Effects of Racism and Racial Discrimination
on the Social and Economic Relations Between Indigenous Peoples
and States" [HR/Pub/89/5]. The United Nations should undertake
a global study, in co-operation with Indigenous peoples, the
UN system, governments and non-governmental organizations, of
the status and conditions of Indigenous peoples in each country,
complemented by workshops and seminars in order to examine the
status and conditions of Indigenous peoples, as well as to identify
options for further international co-operation in respect of
eliminating discrimination against Indigenous peoples. Such a
study should focus upon the matters of prejudice, racism and
racial discrimination. |
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|
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| 74 |
|
The World Conference calls upon
the UN system and States to fully implement the Programs of Action
relating to Indigenous peoples at previous World Conferences,
including the "Social Summit" and Agenda 21 of the
Rio Conference and the Convention on the Rights of the Child. |
| |
|
|
| 75 |
|
The World Conference encourages
the High Commissioner for Human Rights to continue support for
States that are in the process of establishing national human
rights institutions through the provision of training and resources,
and to ensure that such institutions comply with the Paris Principles
(principles relating to the status of national institutions).
States that have not done so are strongly encouraged to establish
effective and independent national human rights institutions. |
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|
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Education |
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|
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| 76 |
|
The World Conference affirms the
important role of education, at all levels, in the promotion
and protection of the fundamental human rights of Indigenous
peoples. The World Conference affirms the urgent need for the
development of national educational curriculum and educational
programs to address racism, racial discrimination and its impact
upon Indigenous rights and entitlements, as well as the need
for the accurate portrayal of the histories and perspectives
of Indigenous peoples, and in particular, Elders. Furthermore,
the World Conference urges that States commit financial and social
resources to education and media campaigns that promote an understanding
and acceptance of, as well as respect for, the diverse cultures
of Indigenous peoples whose lands they live upon. |
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| 77 |
|
The World Conference calls upon
States to make increased effort through education, information
and workplace-based training to counter systemic and institutionalized
racism, racial discrimination and racist attitudes and thinking
towards Indigenous individuals and collectivities. Education
must extend beyond the school. Measures to avoid discriminatory
treatment should be included in the training of judges, prosecutors,
police, court and prison staff, social service and health personnel,
the armed services, educators themselves, and many other occupations. |
| |
|
|
| 78 |
|
The World Conference urges States
to commit financial resources to anti-racism education and media
campaigns to promote anti-racism awareness, the values of acceptance,
tolerance, diversity and respect for the cultures of all Indigenous
peoples living within their national borders. |
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| 79 |
|
The World Conference calls upon
States to maintain levels of funding to their national human
rights institutions so they can effectively and promptly deal
with complaints and undertake comprehensive community education
programs particularly with Indigenous peoples living within their
national borders. The World Conference also emphasizes the importance
of the maintenance of the independence and integrity of national
human rights institutions. |
| |
|
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| 80 |
|
The World Conference calls for programs
of training and education in all aspects of the UN system to
be established for Indigenous peoples including strengthening
and broadening the UN Indigenous Peoples Fellowship Program.
This should extend to training and education programs in the
field of human rights within Indigenous communities and those
persons within the U.N. responsible for matters that affect Indigenous
peoples and their rights. |
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|
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| 81 |
|
The World Conference affirms the
urgent need for States, the United Nations and non-governmental
organizations to publish and provide Indigenous peoples with
adequate and accurate information concerning international human
rights law, in particular state governments policies and directives
concerning Indigenous peoples' rights |
| |
|
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| 82 |
|
The World Conference calls upon
civil society, in particular the media, trade unions, churches,
sports and sporting organisations, to make a strong commitment
to overturning racist views of Indigenous society |
| |
|
|
| 83 |
|
The World Conference recommends
that the media desist from promoting stereotypical, derogatory,
divisive and racist information about Indigenous peoples. In
this respect, it is recommended that a dialogue between Indigenous
and mainstream media be initiated through workshops and all available
technology be utilized to promote the human rights, perspectives
and cultural diversity of Indigenous peoples. |
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|
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Health |
| |
|
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| 84 |
|
The World Conference calls upon
States to recognize that racism affects Indigenous health and
well-being. To this end, States should ensure that Indigenous
peoples are trained to be health workers, nurses and doctors,
so that they be given the responsibility to direct policy and
health services that affect Indigenous peoples. Furthermore,
there is a need for recognition of traditional systems as they
are known and understood by Indigenous peoples and that such
systems of health, law, ceremony, and spiritual existence are
not be compromised by non-Indigenous systems of governance. |
| |
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|
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Removal of Children |
| |
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| 85 |
|
The World Conference condemns nations
that have expressed racism by removing children from Indigenous
peoples and further condemn the continuing practice of forced
removal of Indigenous children. In relation to this particular
matter, the World Conference urges the establishment of national
reparations tribunals or mechanisms within nations which have
historic and current practices of removal of Indigenous children
from their families, communities and cultures. These tribunals
shall determine procedures to assist removed children to locate
their families and to provide for reparations and restitution
to families whose children were subject to removal. |
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Land and Resources |
| |
|
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| 86 |
|
Noting in The Declaration and Program
of Action the requirements of international law that Indigenous
peoples be consulted in good faith, and that their informed consent
be required in all matters that affect them, consistent with
CERD General Recommendation XXIII, the World Conference calls
upon States to formally renounce discriminatory legal doctrines
and policies which deny human rights or limit Indigenous land,
sea and resource rights. In particular, States should adopt corrective
legislation, constitutional reforms or corrective policies, within
the current International Decade of the World's Indigenous People,
to eliminate doctrines and practices, such as the doctrines of
discovery and of terra nullius, that deny that Indigenous
communities have the capacity to own land and seas collectively,
or that unilaterally effect an extinguishment or surrender of
Indigenous land and sea rights, or that allow title or ownership
of Indigenous land and seas to be taken or impaired by the State
or third parties without due process of law and adequate and
appropriate compensation. |
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|
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| 87 |
|
The World Conference calls on States
to take immediate and effective action to recognize and protect
the inherent rights of Indigenous peoples to their lands, territories
and natural resources and ensure that Indigenous peoples have
the right to own and control those lands, territories and resources.
Furthermore, the World Conference affirms that in no case may
a people be deprived of their own means of subsistence, consistent
with the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural
Rights. |
| |
|
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| 88 |
|
The World Conference affirms the
urgent need for States to implement laws, policies and mechanisms
in regard to Indigenous land and sea claims, return of Indigenous
lands and territories, demarcation of Indigenous lands, and further
for States to provide restitution, and where this is not possible,
compensation, for lands, territories and resources that have
been expropriated from Indigenous peoples, based on the best
international standards. |
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Economic Self-sufficiency |
| |
|
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| 89 |
|
States should take effective measures,
on the basis of self-determination, to end the disproportionate
poverty of Indigenous peoples. States should make the level of
commitment, including financial resources and infrastructure,
necessary to assist Indigenous communities to remedy inequities
in living standards and life opportunities which have developed
as a result of long-term institutionalised discrimination, whether
overt or indirect. |
| |
|
|
| 90 |
|
In order to combat racism and racial
discrimination, States should recognize and respect the right
of Indigenous peoples to maintain their traditional economies
and cultures, languages and religions. States should undertake
immediate initiatives to develop, improve and increase their
understanding and awareness of the value, dignity and worth of
Indigenous cultures and in collaboration with the Indigenous
peoples concerned, support the practice and maintenance of cultures,
languages and spirituality of Indigenous peoples. |
| |
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| 91 |
|
The World Conference calls upon
the agencies and organs of the international community, including
the UN Specialised Agencies, the United Nations Development Program
(UNDP), UN voluntary funded organisations and the international
financial institutions such as the World Bank, the International
Monetary Fund, and the World Trade Organization to urgently address
the needs of the world's Indigenous peoples, including those
in both developed and developing States, in order to alleviate
poverty in accordance with the Declaration on the Right to Development. |
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| 92 |
|
These agencies should implement their projects
and programs only after careful consideration of their impact
on the culture and identity of Indigenous peoples. In this respect,
impact assessment studies, including human rights assessments,
and environmental impact assessments should be carried out when
their activities may impact on Indigenous peoples. |
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Cultural Equality, Intellectual
Property and Identity |
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| 93 |
|
The World Conference calls upon States to ensure
cultural equality for Indigenous peoples through: |
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- protection of their cultural and intellectual property,
traditional and Indigenous knowledge |
