Analysis of PGAs decision of 21 March 2014

Prepared by the GCG Secretariat 24 March 2014 CONTEXT Further to the PGAs aide memoire of 26 February 2014, the PGA has now circulated to the five regional groups of member states, a new framework for the informal consultations for the high level plenary meeting of the GA to be known as the World Conference on Indigenous Peoples (HLPM/WCIP). The PGA has invited regional groups of member states to confirm their agreement with the new proposal. If regional groups of member states are in agreement, the formula will be the arrangement for consultations. PROPOSED FRAMEWORK 1) The President of the General Assembly (PGA) will preside over and conduct informal consultations and, in accordance with the modalities resolution (A/RES/66/296), have overall authority for the draft text. In his absence, the PGA will appoint a designate (not a member state or an indigenous representative) to conduct the consultations in his name and on his behalf. ANALYSIS OF PARAGRAPH 1 The modalities resolution provides for the PGA to carry out various activities (OP 3b and c the designation of speakers at the opening session and, the co-chairs of the round tables and interactive panel discussion; OP 3i accreditation of non indigenous organizations; OP 7 the organization of the informal interactive hearing; OP 9 preparing the draft outcome document; and, OP 12 finalizing organizational matters including themes, the opening ceremony and co-chairs). As such, paragraph 1 of the proposed framework is consistent with the modalities resolution. Special mention is made of the draft outcome document. The modalities resolution is clear as to how the drafting will be conducted and the parameters within which the PGA must carry out this task. The drafting must be prepared on the basis of consultations with member states and Indigenous Peoples and by taking into account the views emerging from the preparatory process and the interactive hearing. The proposed framework states the PGA will carry out his mandate in accordance with the modalities resolution meaning that the content of the outcome document will reflect emerging views from the preparatory process. The PGA will not appoint co-facilitators but will appoint a designate if he is not available to conduct the consultations. This person is likely to be his newly appointed focal point for the HLPM/WCIP, Mr Crispin Gregoire who has been seconded to the office of the PGA from UNDP. Mr Gregoire was the Permanent Ambassador for Dominica, 2010 2012. 2) The composition of the podium will be: PGA (or his designate) and four Advisers (two member states and two representatives of indigenous peoples). It is understood that the PGAs designate may be Mr Crispin Gregoire, who serves as a special adviser of the PGA and focal point for the HLPM/WCIP. 1

Moreover, it is understood that the two state representatives will be the ambassadors of Slovenia and Costa Rica. Indigenous peoples will select their own representatives, as PGA advisers, in accordance with article 18 of the UN Declaration on the Rights of Indigenous Peoples. 3) The four Advisers will be treated equally throughout the consultation process, and will be involved in all informal processes and discussions related to the draft text, on an equal basis. ANALYSIS OF PARAGRAPHS 2 AND 3 The creation of a podium lends a greater level of formality to the drafting of the outcome document. It implies that the PGA has taken on board the concerns raised by Indigenous Peoples and some states regarding the need for a process that is equal, open and transparent. The framework of 4 advisors comprising of equal numbers of states and Indigenous Peoples upholds the principle of equality. The title of the position is advisor and not co-facilitator however, it should be noted that the appointment of co-facilitators is a practice that is set out in the guidelines of the PGA and is therefore not mandatory. This means that the PGA can be flexible; he has decided the advisors will comprise Indigenous Peoples and states on an equal footing. The framework, if accepted in its entirety provides that these four people will be treated equally and will be fully engaged in all consultations on the draft text. They will have to work together, share the responsibilities of the position and be available for various types of meetings with both states and Indigenous Peoples. Further, the 2 indigenous advisors are to be determined by Indigenous Peoples through our own processes. The most strategic way for the PGA to deal with this is to invite Indigenous Peoples to propose 2 names. This would ensure no competition between nominees and no need for the PGA to make a difficult decision. As such Indigenous Peoples should consider no more than 2 nominees who have cross regional support. 4) Informal consultations will be open and inclusive. Representatives of indigenous peoples will be able to attend and to take the floor during the consultations. ANALYSIS OF PARAGRAPH 4 Paragraph 4 of the proposed framework provides for inclusive, open, equal and transparent consultations. These will be conducted with all parties present i.e. face to face. A useful precedent to consider is the informal consultations that took place during the working group on the draft declaration on the rights of Indigenous Peoples. Those informal consultations consisted of Indigenous Peoples and states engaging in dialogue via the chair in order to reach agreement on text. Paragraph 4 is consistent with the modalities resolution and the principles of equality and openness. The drafting of the outcome document is a critical component of the preparatory process and therefore requires the full, effective, direct and equal participation of Indigenous Peoples. This paragraph achieves this and the framework is flexible enough to ensure the informal consultations are ongoing, informal and open. It is also flexible enough to provide that Indigenous Peoples and states are able to hold their own additional informal meetings.

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At the conclusion of the informal consultation process, (i.e. when the draft text is ready to go to a silence procedure), Member States will, in accordance with the modalities resolution (OP9), consider the final draft text in order to obtain an agreement by the General Assembly before its formal action at the high level meeting. ANALYSIS OF PARAGRAPH 5 The informal consultation process will end once agreement on the text has been reached. Once that occurs, it will proceed to a silence procedure. This is a procedure used by the GA once agreement has been reached on text. A silence procedure has a deadline. If no member state puts forward an objection by the given deadline, the draft text is considered agreed. The text can then proceed to formal adoption by the GA. This process is consistent with the modalities resolution and reflects UN practice. Once the text enters the silence procedure, state(s) could potentially object to the text, however it will be very difficult for any state to maintain any reasonable objection given the open and inclusive process for the drafting of the outcome document. One of the ways this will be addressed will be advocacy by the indigenous lobbying team and bi lateral meetings that the indigenous advisors to the PGA can arrange. Both groups can play a critical role in monitoring state positions and maintaining open communication with all states on the text as it evolves.

FURTHER POINTS FOR CONSIDERATION The framework does not specifically mention the remaining organizational work and the processes by which they will be concluded. However, it would be illogical for the PGA to determine the other organizational matters in a way that is different from what is proposed in this new framework. Monitoring of the PGA will be essential. This can be done by Indigenous Peoples, the indigenous advisors, friendly states and potentially the state advisors; all these parties can ensure that all outstanding matters are addressed consistently and that a rights based approach is used. In order for this framework to be successful it must be accepted by the 5 UN regions in its entirety. It would not be appropriate for regions to pick and choose portions of the proposed framework as it will only work if all parts are accepted and implemented to ensure the principles of equality and participation are upheld. The two indigenous advisors will need to be available from the present until September to complete this work and they will need to be based in New York for a large portion of this time. Ideally they should be fluent in English in order to be able to effectively communicate with the two state advisors. Competency in another UN language would also be an advantage.

SUMMARY This framework ensures a joint process of consultation, the full, effective, direct and equal participation in the drafting of the outcome document and respect for Indigenous Peoples right to 3

participate in this process through representatives chosen by themselves in accordance with their own procedures. The makeup of the podium, the return to a consultation process that is based on openness and inclusivity as well as consistency with the modalities resolution reflects important and significant changes in the position of the PGA which Indigenous Peoples should carefully consider.