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PERMANENT COUNCIL OF THE OEA/Ser.K/XVI

ORGANIZATION OF AMERICAN STATES GT/DADIN/doc. 339/08

14 May 2008

COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS Original: Spanish

Working Group to Prepare the Draft American

Declaration on the Rights of Indigenous Peoples

REPORT OF THE CHAIR ON THE ELEVENTH Meeting of NegotiationS

in the Quest for Points of Consensus

(United States, Washington, D.C., April 14 to 18, 2008)


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REPORT OF THE CHAIR

I. MANDATE

The Eleventh Meeting of Negotiations in the Quest for Points of Consensus of the Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples was held in Washington, D.C., in the United States, from April 14 to 18, 2008, in keeping with resolution AG/RES. 2294 (XXXVII-O/07), in which the General Assembly renewed the mandate of the Working Group to continue holding its meetings of negotiations in the quest for points of consensus, so as to complete the drafting of the Declaration, on the basis of the “Record of the Current Status of the Draft American Declaration on the Rights of Indigenous Peoples” (GT/DADIN/doc.301/07) and taking into account the “Compendium of Proposals of Negotiations in the Quest for Points of Consensus Held by the Working Group” (GT/DADIN/doc.255/06 rev. 2 and add. 1) and other pertinent documents of the Working Group.

II. MECHANISMS FOR PARTICIPATION BY INDIGENOUS PEOPLES

The Indigenous Peoples' Caucus was held in Washington, D.C., in the United States, on April 12 and 13, 2008, and attended by representatives and experts.

The purpose was to seek consensus among the various indigenous representatives of North, Central, and South America and the Caribbean. Participating in the Caucus were the representatives assisted with financial resources from the Specific Fund established for the drafting of the American Declaration, as well as other indigenous representatives who covered their own costs.

III. ADOPTION OF THE AGENDA

The agenda and the schedule for the Eleventh Meeting of Negotiations in the Quest for Points of Consensus were adopted by the CAJP (Committee on Juridical and Political Affairs) at the meeting of March 27, 2008. Both the agenda, published as document GT/DADIN/doc.331/08 rev. 2, and the schedule list the five principal topics under discussion.

IV. SELECTION OF INDIGENOUS EXPERTS OR LEADERS BY THE BOARD OF THE SPECIFIC FUND TO SUPPORT THE ELABORATION OF THE AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES

The Selection Board of the Specific Fund met on March 20, 2008. It was composed of Azelene Inácio, indigenous member of the Selection Board for South America; José Carlos Morales, indigenous member of the Selection Board for Central America and the Caribbean; Beverley Jacobs, indigenous member of the Selection Board for North America; the Chair of the Working Group, Ambassador Reynaldo Cuadros Anaya, Permanent Representative of Bolivia to the OAS; and the Vice Chair of the Working Group, Luís Exequiel Alvarado Ramírez, Minister Counselor, Alternate Representative of Nicaragua to the OAS. In its decisions, the Board applied the criteria set forth in OAS Permanent Council resolutions CP/RES. 817 (1319/02) and CP/RES. 873 (1459/04), in which the Specific Fund was formed and its functioning was amended.

The candidates chosen are as follows:

Argentina: Sandra Painefilu

Belize: Anita Tzec

Bolivia: Ramiro Galindo Chávez

Brazil: Ubiratan de Souza Maia

Canada: Ronald Lameman

Chile: Magdalena Choque Blanco

Colombia: Jaime Arias Arias

Costa Rica: Alancay Morales Garro

Dominica: Charles Williams

Ecuador: Teresa Jimbicti Pandama

El Salvador: Raúl Muzo Crespin

Guatemala: Juan León Alvarado

Honduras: Santiago Flores Rosales

Mexico: Adelfo Regino Montes

Nicaragua: María Hazel Lau

Panama: Héctor Huertas González

Paraguay: Alberto Vásquez Ayala

Peru: Irinea Bardales Díaz

Saint Vincent and the Grenadines: Oswald Robinson

United States: June L. Lorenzo

The results of the process for selection of indigenous leaders and experts were published in Information Bulletin No. 3. One of the representatives selected was unable to attend the meetings in Washington.

The Specific Fund covered the expenses of representatives selected for the Eleventh Meeting of Negotiations in the Quest for Points of Consensus and of the three members of the Selection Board.

V. PROCEEDINGS

A. Methodology

The procedure followed at the Eleventh Meeting of Negotiations was that contained in document GT/DADIN/doc.246/06 rev.7 and approved by the Working Group and the representatives of the indigenous peoples in November 2007.

The meeting of negotiations was also enriched by presentations on specific topics and the presence of special guests.

B. Documents

Participants in the Eleventh Meeting of Negotiations in the Quest for Points of Consensus had the following documents: Agenda, GT/DADIN/doc.331/08 rev. 2; Schedule, GT/DADIN/doc.332/08 rev. 2; Record of the Current Status of the Draft American Declaration on the Rights of Indigenous Peoples, GT/DADIN/doc. 301/07 rev 1; Compendium of Proposals of the Nine Meetings of Negotiations in the Quest for Points of Consensus Held by the Working Group, GT/DADIN/doc.255/06 rev. 2; Compendium of Proposals of the Tenth Meeting of Negotiations in the Quest for Points of Consensus, GT/DADIN/doc.255/06 rev. 2 add.1; Classification of Provisions That Could Facilitate Consensus, Methodology, GT/DADIN/doc.246/06 rev. 7; Informational note presented by the United Nations GT/DADIN/doc.333/08.

C. Participants

The list of participants–both representatives of OAS member states and representatives of indigenous peoples–is included in the annexes to this report.

D. Inaugural session

The inaugural session was held on April 14, 2008, with the traditional indigenous prayer. Speaking were the Chair of the Working Group, Ambassador Reynaldo Cuadros of Bolivia; the Vice Chair of the Working Group, Minister Counselor of Nicaragua to the OAS, Luis Ezequiel Alvarado; representing the indigenous peoples, Mr. Armand MacKenzie; and representing the General Secretariat, the Assistant Secretary General of the OAS, Ambassador Albert R. Ramdin.

Some of their statements are included in the annexes to this report.

E. Proceedings according to the schedule:

First session

The first work session was held on April 14, 2008. When consideration of the schedule, GT/DADIN/doc.332/08 rev. 2, began, Ms. Ana Peña, for the delegation of Peru, suggested shortening the time allowed for analyzing the complementary nature of the process taking place in the OAS with that of the United Nations and increasing the amount of time set aside for negotiating the text. The suggestion was supported by the Indigenous Peoples' Caucus. On that understanding, the presentation by Professor S. James Anaya, special guest, opening the dialogue on the complementarity between the United Nations Declaration on the Rights of Indigenous Peoples and the Draft American Declaration on the Rights of Indigenous Peoples was brought forward and shortened (presentation attached).

Professor Anaya’s presentation was well received by the participants, providing enrichment and guidance as to the future of the negotiations in the OAS context. His presentation led to a period of questions and answers, involving the representatives of the member states and of the Indigenous Peoples' Caucus. A leading topic was the question of the role to be played by an American Declaration on the Rights of Indigenous Peoples adopted after the United Nations Declaration. On this, Professor Anaya gave a clear and objective explanation; he said it was important to define the characteristics specific to the region and emphasize them when drafting the American Declaration. He added that the American Declaration should be seen as something complementary to and consistent with the United Nations Declaration. Professor Anaya was emphatic in stating that in the negotiation the idea was not to create new laws but to promote and recognize laws existing in the international arena.

Likewise, Professor Anaya underscored the need for reconciliation and a search for values shared by indigenous peoples and the states, which would help to produce a declaration of substance, geared to the real exercise of the rights it sets forth, covering urban, migration, political, cultural, and other issues. He also stressed that no state had objected to the body of the text of the United Nations Declaration on the Rights of Indigenous Peoples, so that exercises in finding points of dissent were to be avoided in favor of a quest for complementarity. He also recommended eschewing legalistic language and exploring points of consensus, thereby contributing to the specific nature of the OAS exercise.

At this point, the United States delegation stated its country’s position on the negotiation process and presented a “Statement of Principles of the United States of America on the Rights of Indigenous Peoples,” the text of which is attached to document GT/DADIN/doc.334/08.

Second session

The second work session took place on the afternoon of April 14, 2008, and dealt with the presentation of suggestions and comments resulting from the meeting of reflection held from November 26 to 28, 2007. The Chair referred to the documents “Meeting of Reflection: Outcomes and Recommendations presented to the Permanent Council on November 28, 2007,” GT/DADIN/doc.324/08 rev. 1, and “Suggestions and Comments on the Draft American Declaration on the Rights of Indigenous Peoples as Requested by the Permanent Council,” CP/doc.4263/08.

Beginning the discussion of this topic, the delegation of Canada stated its position on the negotiation. Canada’s statement is provided in an annex to document GT/DADIN/doc.334/08.

Some delegations commented on the positions taken by the United States and Canada. Some respected the motivations of these two countries in remaining on the sidelines of the negotiation process. Others considered this inconsistent with the Working Group’s interest in conducting negotiations in which all member states participated in the interest of consensus.

The Chair felt that it was worth noting that the decision of the United States and Canada not to hamper the Declaration drafting process in a way facilitated consensus. He thanked them for taking a position that would allow progress on the text and felt sure that the outcome of that decision would be satisfactory. This notwithstanding, he hoped to receive contributions from both delegations throughout the negotiations and that in the end they would play a full part in the process.

Third work session

This work session was held on April 14, 2008. In this segment, the Group dealt with defining the method for introducing the examination of complementarity between texts into the negotiation process.

After extensive discussion of how best to proceed with negotiating the document, the Group concluded that, since the document was a declaration, not a treaty, in many cases the wording should be simplified. That conclusion was unanimous and from then on an effort was made to find simpler and more declarative language.

Bearing in mind the methodology (GT/DADIN/doc.246/06 rev. 7), customarily used in the previous negotiations, whereby the Group would begin with the article at which the previous session had left off, it was proposed, from now on, to negotiate first those articles for which it would be easier to reach a consensus, to be agreed on in prior consultations in order to shorten the time taken up by plenary sessions and make them more effective. All these suggestions proved their worth in the course of the negotiations.

Once the document submitted by the Office of International Law (GT/DADIN/doc.329/08 rev. 1) and the proposal by the Caucus had been presented, it was found to be feasible to adopt that proposal for the conduct of negotiations at this meeting.

Fourth session (negotiation)

Despite the conclusion reached at the third session, the Conclave suggested trying to move ahead with Article 17, paragraph 5, where the Tenth Meeting of Negotiations in the Quest for Points of Consensus had left off, because the participants had come prepared to negotiate it. Afterwards, the Group would proceed as agreed.

On April 15, the proceedings began with a presentation of the AMAUTA Project by Mr. Michel Bergeron, Director of the Department of Science and Technology. The AMAUTA Project is a joint proposal with the Government of Bolivia to provide a scenario in which recognition of indigenous rights is applied by establishing sustainable, indigenous territories, with renewable forms of energy, organic crops, eco-tourism, and other features to meet the ecological needs of prosperous, self-sufficient communities. Mr. Bergeron’s statement is provided as an attachment to this report.

The morning session and part of the afternoon session focused on a discussion of the positions set forth by the delegations of the United States and Canada. After a statement by the Indigenous Peoples' Caucus, provided as an attachment to this report, several member state representatives expressed concern over how the position of those two states was to be interpreted and what would be the actual impact of their participating only at the end of the negotiation process.

At the end of the afternoon on April 15, the Group took up discussion of Article XVII, item 5. Given the lack of consensus and the presentation of differing proposals, the Chair proposed that an informal drafting group be formed to attempt an alternative text that would accommodate the concerns of the governments and the indigenous peoples on the article in question. With this, the meeting concluded for that day.

On April 16, at the beginning of the session, the Caucus announced that it had not yet reached consensus on Article XVII but was close to doing so; hence it requested more time for its presentation of a final proposal.

The Group then took up Article XVIII. After extensive discussion, it approved item 1. This was a substantial contribution because it incorporated an essential element in the indigenous view of the cosmos, namely the right to spiritual health and their own forms of physical, mental, and spiritual well-being. Previously, the United Nations did not refer to spiritual health and made that well-being subject to “international standards,” which obviously are established without the acquiescence of the indigenous peoples. This paves the way to a revaluation of ancestral cultures. It also enables a major indigenous demand to be established in the OAS framework that may also influence other processes at the global level.

In view of the difficulty of arriving at a consensus on the remaining items, it was decided to begin addressing, from then on, those articles on which it seemed easier to reach consensus. Accordingly, the Group discussed Articles XXXIII, XXXVI, and XXXIX. All three were approved, unanimously, in their entirety.

During the afternoon session on April 16, the Indigenous Conclave was asked to indicate to the Working Group those articles for which a consensus would be easier to reach. Accordingly, the Group discussed Articles II, V, and VIII, of which the first two were approved. The negotiation of Article VIII was left pending for the following day.

Negotiations resumed on April 17, with discussion of Article VIII, but consensus was not reached. In the Chair’s view, that was due to lack of an agreement via informal consultations. Following the established order, the Group proceeded to examine Article XI. The discussion of this article was suspended while the representatives of the member states and indigenous peoples attended the Lecture Series of the Americas.