Rodney Bobiwash, Director - The Forum for Global Exchange, CWIS
December 20, 1999

At the assembly of the Organization of American States (OAS) in Guatemala in July 1999 the OAS made a commitment to consult widely with indigenous leaders of the America's on the wording of a Draft Declaration on Indigenous Rights, a process that had begun ten years previously. In October 1999 the OAS opened up it's doors for the first time to any "citizen group" and met with Indigenous representatives at their offices in Washington, D.C. The purpose of this meeting was to do a "first reading" of the articles and to allow the parties to put out on the floor their comments on each of the articles under discussion. These comments would then be tabled for discussion towards the end of the week depending on time or at a subsequent meeting.

The meeting began with a greeting to the Indigenous caucus from the Chair of the OAS Working Group however it quickly degenerated as the conditions of participation for Indigenous people were set out in the meeting. The OAS proposed that Indigenous representatives only be allowed to offer remarks upon the opening and closing of discussion on each article. The Chair of the meeting listened to a protest from the Indigenous caucus and then proceeded directly into the planned agenda with no regard for the comments made. The result of this was a walk-out of the Indigenous representatives.

The result of the walk-out was that many of the representatives of the OAS states came to the Indigenous Caucus and expressed that they saw no validity in any Declaration on Indigenous Rights which lacked the participation of Indigenous people. Over the next day delegates from Canada, the United States, Costa Rica, Columbia and other states came to ask the Indigenous Caucus to rejoin the meeting. The tiny country of St. Lucia even made an offer to have their seat at the table occupied by an Indigenous Representative named by the Indigenous Caucus. Eventually the Indigenous Caucus drafted a Statement to be read to the meeting and agreed to rejoin the meeting. This was facilitated by a commitment from Canada and the United States that they would ask specifically for the opinions of the Indigenous representatives one each item of discussion.

In the Statement issued by the Indigenous Caucus on November 9, 1999 there were five main points relating to the participation of Indigenous people in the meeting and the fact that the meeting had begun discussing the Draft Declaration despite the fact that no indigenous representatives were present. The text below is taken from the English language version of the document:

1. Participation in the debate - That the right to speak will be ample, sufficient and without restrictions and that will permit indigenous delegates to express their opinions with respect to the interventions of state representatives. That the indigenous delegates will be allowed a final intervention before consensus is reached;
2. Reaching consensus That the mechanism for reaching consensus as much for the preamble as for substantive articles will take into account of the contributions of the indigenous delegates. Furthermore, the indigenous peoples should be permitted to give their opinions before and after reaching consensus among the representatives of the state to participate in the consensus with the state parties;
3. Records of the Interventions - There should be a register of each and every intervention and positon of the indigenous delegates in the discussions of the preamble and substantive positions, in records which will constitute annexes of the results and which will be accessible to the states and the indigenous organizations of the Americas. The indigenous delegates should be permitted to evidence their interventions in the records before the conclusion of the session;
4. Preamble - That we will be permitted to give our opinions concerning the preamble as to which we have not yet presented our views;
5. Reservation about participation - The indigenous delegates want to document that we are participating under protest and if we consider tha tin the developments of the debate and consensus our aspirations and points of view are not taken into account, we will exercise our right to withdraw.

In addition to the above concerns the Indigenous Caucus was of the opinion that the OAS should establish a permanent Indigenous People's Forum within it's structure to form an ongoing dialogue on not only the Draft Declaration but also other issues of concern to Indigenous people within the OAS states.

By the end of the second day the Indigenous Caucus reached a decision to rejoin the meeting and to read the Statement to the meeting. This was done and was received with assurances that indigenous people could have fuller participation in the discussion and guarantees that the comments and discussion would be entered into the final document and record of the meeting. There was no agreement that Indigenous representatives would have any role in decision making on the final wording of any of the articles or on the Draft Declaration at all and there was no agreement on the establishing of a permanent Indigenous People's Forum within the OAS.

The rest of the week continued with the first reading of the Draft Document and the Indigenous representatives providing their positions on the wording of each article. The positions taken by each indigenous group varied and covered all of the proposed document. In summary among the issues that were raised by Indigenous representatives were:

1. The need for a clear definition and agreement on terms used in the document including the definitions of people(s), populations, land, territory, and self-determination;
2. The need for the Preamble of the Draft Declaration to accurately reflect the historical experience of Aboriginal people in the Americss and the continuing uncertainty of life for many Aboriginal groups;
3. The need to address territoriality and movement across state border for many indigenous nations who are situated in more than one state;
4. Strong language on human rights defined both individually and collectively for Indigenous peoples in the Americas;
5. A strengthening of language on the right of self-determination and political rights for Indigenous peoples;
6. Protection of Indigenous people's lands and resources in terms of both access and ownership, and specifically with regard to hunting and fishing rights;
7. The need for mediation processes to settle disputes between states and Indigenous nations ;
8. The harmonization of the OAS Draft Declaration with other international instruments including the United Nations Draft Declaration on Indigenous Peoples;
9. Food security, and economic protection of Indigenous communities affected by free trade and other hemispheric and international trade agreements;

Beyond all of the above there was much said by the indigenous representatives on each of the specific articles and the Preamble

It should be noted that the Draft Declaration is not a Covenant under international law which will bind the signatories to any action but is rather seen as a document of aspirations by the signatories. Nevertheless it will set an important benchmark for all states in the Americas. One of the largest obstacles in indigenous peoples negotiating this document is the culture of the OAS itself. As the oldest hemispheric states organization in the Americas the OAS has operated since it's founding as a highly secretive and insular body with accountability only to their individual governments. There is some fear that the entry of Aboriginal people unto the process wil lead to a demand for the involvement of other "citizen groups" in the process. There is some talk among state's representatives of casting this participation under the rubric of civil society, as at the Free Trade Agreement of the Americas meetings in Toronto in October 1999 and at the World Trade Organization Meetings in Seattle in November 1999. While this may be a tempting and convenient cubbyhole for states to deal with dissent within and outside of their own border it is a rubric which does not serve indigenous people at all. The members of civil society; labour, NGO's, faith groups, environmental groups, have a stated interest in working out arrangements in state processes and have a basis for the right to consultation which is based on vastly different justifications in law and practice than do Aboriginal people. Most Aboriginal people in the Americas have a separate and unique status enshrined in the constitutional documents of the states they live within. Aboriginal right is rooted in occupancy since time immemorial, inherency, and original agreements between settler populations and Aboriginal nations ie treaties. Given the inherent nature of these rights they cannot be legally alienated, voluntarily surrendered in exchange for any benefit, nor can they be lumped as a class with the rights of other groups within states. Any move on the parts of states to do this is extremely dangerous to the positions of Indigenous nations and cannot be tolerated.

At any rate as much as some states do not want to deal with indigenous nations it is apparent that they realize they must and that the corpse of imperialism and colonialism in the Americas must be laid to rest. The stakes are too high for this not to happen. With a number of low intensity wars active across the Americas between indigenous nations and states; economic activities being carried out on indigenous territories; international aid increasingly being tied to human rights standards; displaced populations of Indigenous peoples fleeing war zones straining domestic resources; and, the strength of indigenous communities who control access to biological and genetic resources in their lands and bodies, states can no longer afford to act as strongmen who will decide what is best for Indians.

The next step in this process will be a further meeting perhaps even prior to the OAS General Assembly in Windsor, Ontario, Canada from June 4-7, 2000. While it appears extremely unlikely that a draft will be ready for that assembly what will not go away is the need for continued consultation between states and Indigenous nations from Nunavut to Tierra del Fuego.