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Fwd: [pacific] Agreement for Amended Declaration/2

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  • karaka
    ... From: Les Malezer Date: Sep 1, 2007 8:06 PM Subject: [pacific] Agreement for Amended
    Message 1 of 1 , Sep 1, 2007
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      Fwd: [pacific] Agreement for Amended Declaration/2
      ------ Forwarded Message ---------- Forwarded message ----------
      From: Les Malezer <les.malezer@...
      <mailto:les.malezer%40faira.org.au> >
      Date: Sep 1, 2007 8:06 PM
      Subject: [pacific] Agreement for Amended Declaration
      To: pacific@... <mailto:pacific%40lists.riseup.net>

      Dear Colleagues

      You will have very recently received my global email announcing the
      agreement reached over the Declaration on the Rights of Indigenous

      This agreement between the Co-sponsoring States - those supporting the
      existing text of the Declaration - and the Africa Group of States means
      that the Declaration, complete with amendments negotiated as part of
      the agreement, will not be defeated in the General Assembly when it is
      considered on 13 September.  In fact, there will be almost a complete
      consensus of States in support of the Declaration is Middle Eastern,
      Asian and Small Island States agree also to back the agreement.

      However, if there is opposition by Indigenous Peoples to these latest
      amendments it is still feasible that the Declaration will not be
      adopted, and there will be no Declaration approved by the General

      So on the question of whether these amendments are good or bad changes
      for Indigenous Peoples you are being asked to make your own judgment.

      You will probably conclude that this is both a matter for political, as
      well as legal, consideration.

      As I know many of you will ask for my own view, and Mililani Trask and
      myself are collaborating here in New York on the Pacific interests, I
      am prepared to express my own personal opinion.  Of course, I do not
      intend to try and force you to a particular point of view.  I believe
      also that Mililani supports my view that we should endorse this amended
      Declaration, and the agreement, and advocate for the adoption and
      implementation of this Human Rights standard.

      Mililani perhaps has slightly different reasons for backing this
      Declaration.  These are mine.  The amendments are, except for one
      provision, minor and of no consequence.  One amendment in particular is
      positive and will enhance the interpretation of the Declaration.

      The controversial amendment is the inclusion of 'territorial integrity'
      into the last Article, Article 46.  There are differing legal opinions
      on whether this creates a change in international law or not, on the
      notion of territorial integrity to the effect that its impact upon the
      human rights of Indigenous Peoples is different from all other
      populations.  In Australia, our indigenous organisations have already
      decided that there is not a negative impact and that the inclusion or
      not of 'TI' has no consequence.  We were satisfied that in
      international law the relationship between the rights in the
      Declaration and territorial integrity remain the same, whether the
      terminology is included in the Declaration or not.

      However you should seek legal advice, hopefully good advice, if you
      want to resolve your own mind.

      I simply now go on to say that all other amendments are basically

      Taking a political viewpoint, I am extremely surprised that these soft
      changes have satisfied the Africa Group of States and I can only
      conclude that they have grown tired or disinterested in the
      Declaration, or had very little objection in the first place.

      Also, and this is political and legal, we should promote this
      Declaration and talk up its qualities.  It is going to be us who push
      for its impact in the future, not the States, and we also want to
      ensure that courts, be they domestic or international, take the most
      positive interpretation of the text in the future.  Why should we make
      it easy for the courts to see problems or shortcomings in the
      Declaration text?

      I have many other thoughts but I leave it here for you to ponder
      further and decide how you are to regard the Declaration.  I look
      forward to your responses.

      Note that Mililani and I, and perhaps a few others, will send out more
      comments over these next few days.




      Les Malezer
      PO Box 8402
      Woolloongabba  Qld  4102

      Mobile: +61 419 710 720
      Tel:  +61 7 33914677
      Skype:  +61 7 31030383
      Fax: +61 7 33914551

      Email: les.malezer@... <mailto:les.malezer%40faira.org.au>

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