UNPFII 11th Session Recomendations on the Doctrine of Discovery

United Nations • New York, 2012

Economic and Social Council

Official Records, 2012

Supplement No. 23

Permanent Forum on Indigenous Issues

Report on the eleventh session (7-18 May 2012)

Chapter I

Matters calling for action by the Economic and Social Council or brought to its attention

A.            Draft decisions recommended by the Permanent Forum for adoption by the Council

1.            The Permanent Forum on Indigenous Issues recommends to the Economic and Social Council the adoption of the following draft decisions:

Draft decision I

International expert group meeting on the theme “Indigenous youth: identity, challenges and hope: articles 14, 17, 21 and 25 of the United Nations Declaration on the Rights of Indigenous Peoples”

The Economic and Social Council decides to authorize a three-day international expert group meeting on the theme “Indigenous youth: identity, challenges and hope: articles 14, 17, 21 and 25 of the United Nations Declaration on the Rights of Indigenous Peoples”.

Draft decision II

Venue and dates of the twelfth session of the Permanent Forum

The Economic and Social Council decides that the twelfth session of the Permanent Forum on Indigenous Issues shall be held at United Nations Headquarters in New York, from 20 to 31 May 2013.

Draft decision III

Report of the Permanent Forum on Indigenous Issues on its eleventh session and provisional agenda for its twelfth session

The Economic and Social Council,

(a)            Takes note of the report of the Permanent Forum on Indigenous Issues on its eleventh session;

(b)            Approves the provisional agenda for the twelfth session of the Permanent Forum as set out below:

1.            Election of Officers.

2.            Adoption of the agenda and organization of work.

3.            Follow-up on the recommendations of the Permanent Forum:

(a)            Health;

(b)            Education;

(c)            Culture.

4.            Half-day discussion on the African region.

5.            Comprehensive dialogue with United Nations agencies and funds.

6.            Discussion on the World Conference on Indigenous Peoples.

7.            Human rights:

(a)            Implementation of the United Nations Declaration on the Rights of Indigenous Peoples;

(b)            Dialogue with the Special Rapporteur on the rights of indigenous peoples and the Chair of the Expert Mechanism on the Rights of Indigenous Peoples.

8.            Future work of the Permanent Forum, including issues of the Economic and Social Council and emerging issues.

9.            Draft agenda for the thirteenth session of the Permanent Forum.

10.            Adoption of the report of the Permanent Forum on its twelfth session.

B.            Matters brought to the attention of the Council

2.            The Permanent Forum has identified the proposals, objectives, recommendations and areas of possible future action set out below and, through the Council, recommends that States, entities of the United Nations system, intergovernmental organizations, indigenous peoples, the private sector and non-governmental organizations assist in their realization.

3.            It is the understanding of the Secretariat that the proposals, objectives, recommendations and areas of possible future action to be carried out by the United Nations, as set out below, will be implemented to the extent that resources from the regular budget and extrabudgetary resources are available.

Recommendations of the Permanent Forum

Special theme: “The Doctrine of Discovery: its enduring impact on indigenous peoples and the right to redress for past conquests (articles 28 and 37 of the United Nations Declaration on the Rights of Indigenous Peoples)”

4.            The Permanent Forum recalls the fourth preambular paragraph of the United Nations Declaration on the Rights of Indigenous Peoples, which affirms that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust. Legal and political justification for the dispossession of indigenous peoples from their lands, their disenfranchisement and the abrogation of their rights such as the doctrine of discovery, the doctrine of domination, “conquest”, “discovery”, terra nullius or the Regalian doctrine were adopted by colonizers throughout the world. While these nefarious doctrines were promoted as the authority for the acquisition of the lands and territories of indigenous peoples, there were broader assumptions implicit in the doctrines, which became the basis for the assertion of authority and control over the lives of indigenous peoples and their lands, territories and resources. Indigenous peoples were constructed as “savages”, “barbarians”, “backward” and “inferior and uncivilized” by the colonizers who used such constructs to subjugate, dominate and exploit indigenous peoples and their lands, territories and resources. The Permanent Forum calls upon States to repudiate such doctrines as the basis for denying indigenous peoples’ human rights.

5.            The ongoing manifestations of such doctrines are evident in indigenous communities, including in the areas of: health; psychological and social well-being; denial of rights and titles to land, resources and medicines; conceptual and behavioural forms of violence against indigenous women; youth suicide; and the hopelessness that many indigenous peoples experience, in particular indigenous youth.

6.            Another ongoing manifestation of dispossession doctrines is the concept of extinguishment, found in the regulations, policies and court decisions in which States have purportedly “extinguished” the rights of indigenous peoples to their lands, territories and resources, their right to self-determination, their languages, religions and even their identities and existence through the notion of “recognition”, that is by recognizing some and not recognizing others as indigenous. “Extinguishment”, in the context of indigenous peoples’ rights to lands, territories and resources is inconsistent with the contemporary understanding in international law, specifically the peremptory norm of the absolute prohibition against racial discrimination. No other peoples in the world are pressured to have their rights “extinguished”.

7.            Article 26 of the United Nations Declaration on the Rights of Indigenous Peoples, treaty body jurisprudence and case law from all major international human rights institutions confirm that indigenous peoples hold collective rights to the lands, territories and resources that they have traditionally owned, occupied or otherwise used, and that respect for their customs, traditions and land tenure systems is owed to them. Such rights have the same legal status as all other property rights to lands, territories and resources. States are no longer allowed to deploy positivist legal interpretations of laws adopted during an era when doctrines such as terra nullius were the norm. International human rights law, including norms on equality and non-discrimination such as those affirmed in the International Convention on the Elimination of All Forms of Racial Discrimination and the United Nations Declaration on the Rights of Indigenous Peoples, demand that States rectify past wrongs caused by such doctrines, including the violation of the land rights of indigenous peoples, through law and policy reform, restitution and other forms of redress for the violation of their land rights, including those referred to in articles 27 and 28 of the United Nations Declaration.

8.            During its tenth session, the Permanent Forum emphasized that redefining the relationship between indigenous peoples and the State as an important way to understand the doctrine of discovery and a way to develop a vision of the future for reconciliation, peace and justice. To that end, the United Nations Declaration on the Rights of Indigenous Peoples provides a strong human rights framework and standards for the redress of such false doctrines, notably in articles 3, 28 and 37. The Permanent Forum encourages the conduct of the processes of reconciliation “in accordance with the principles of justice, democracy, and respect for human rights, equality, non-discrimination, good governance and good faith”.

9.            The Permanent Forum recommends that States include in all education curricula, in particular the school system, a discussion of the doctrine of discovery/dispossession and its contemporary manifestations, including land laws and policies of removal.

10.            The Permanent Forum welcomes the recommendation to establish a voluntary international mechanism to receive and consider communications from indigenous peoples specifically concerning their claims to, or violations of, their rights to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. This recommendation deserves further elaboration by indigenous peoples and others concerned. The Forum takes note of the mandate of the Special Rapporteur on the rights of indigenous peoples in this regard.

11.            The Permanent Forum recommends that States and the United Nations system, with particular attention to the activities of the United Nations Children’s Fund (UNICEF) and the World Health Organization (WHO), introduce indigenous youth perspectives into existing youth policies and plans, including the five-year action agenda of the Secretary-General to address health issues. In addition, there should be a distinct focus on indigenous youth by improving participation in decision- making and by introducing and including mental health services for young people, with particular efforts to address suicide among indigenous youth.