Special Rapporteur statement on Water at UNPFII

Statement to the Permanent Forum on Indigenous Issues Catarina de Albuquerque, Special Rapporteur on the human right to safe drinking water and sanitation

24 May 2011

Thank you for the invitation to speak here today. This is the first time that I am appearing before this esteemed body and I am honoured to be among such distinguished participants.

I have been working on the mandate on the rights to water and sanitation since 2008, when this mandate was established. During that time, I have had the occasion to be in touch with numerous indigenous peoples’ organizations, not only through my country missions, but also through other meetings and correspondence.

Like in with so many other human rights, indigenous peoples suffer disproportionate violations of their rights to water and sanitation. The people in this room are no doubt well aware of this reality. Today I would like to speak about the types of violations which have been raised with me in my capacity as Special Rapporteur on the rights to water and sanitation. I would like to touch upon some of the measures that we can take to address these violations, and finally, I would like to talk about human rights more broadly and how the human rights framework can be used to analyse the special relationship that indigenous people have to and with water.

Nearly a billion people in the world do not have access to an improved water source. Many more do not have access to safe water. Over 2.5 billion people do not have access to improved sanitation facilities. The numbers demonstrate to us that we are facing a true crisis. However, beyond the enormous numbers, we must constantly ask -- who does not have access and why? In my work, I have seen that it is always the same people who are excluded. It is the marginalized, the poor, those without political voice. In the countries that have indigenous populations, too frequently, it is also these communities who do not have access to water and sanitation. Such lack of access is not simply an unfortunate situation nor a coincidence, but it is a direct result of policies and politics which exclude certain segments of the population.

My very first country visit in 2009 was to Costa Rica. I examined numerous issues related to water and sanitation there, giving also attention to the situation of indigenous people. Let us recall that Costa Rica is on track to meet the MDGs on water and sanitation, which is certainly commendable. However, I was dismayed by the lack of attention towards improving the situation of indigenous peoples. The vast majority of indigenous peoples living in the 24 reserves in the country do not have access to safe drinking water or sanitation services, compared with nearly universal access in urban areas and very high access rates in other rural areas. Hence I was concerned about the country’s focus on the “general” positive trend in providing access to water and sanitation to the “overall” population, while overlooking the fact that specific, targeted and deliberate policies and measures are needed to make sure that progress also reaches the excluded segments of the population, including the indigenous people.

As Special Rapporteur, I also regularly receive information about threats to indigenous rights, including especially concerns about pollution of water sources. For example, I have received numerous reports about the impact of mining operations -- from uranium mining in the US to bauxite mining in India -- indigenous peoples are seeing severe impacts on their access to clean water, as well as on their way of life and culture. Projects to generate new sources of energy, such as dams and geothermal exploration, have also been reported to me as having a serious impact on access to clean water for indigenous peoples.

As the people in this room know well, indigenous peoples often have a special or even spiritual relationship with water. I witnessed this special bond when I visited the Winnemen Wintu tribe in California a couple of months ago. This tribe uses the local river -- the McCloud River -- for spiritual and ceremonial purposes. For example, they hold the puberty ceremony, which honours the coming of age for young women who have to swim across the river and joins tribal dancers as a full-fledged woman. However, the area used has been turned into a recreational campground serviced by the United States Forest Services, where the presence of tourists, campers and boaters challenges the privacy and dignity of the young women undergoing the ceremony, as well as the continuation of tribal practices.

The activism of indigenous communities has been crucial in bringing these situations to light. This Forum is indeed one opportunity to expose these human rights violations and pressure Governments to ensure that indigenous rights are full protected. The past year has also seen groundbreaking litigation in Botswana by the Basarwa concerning their right to water. The Basarwa had been denied access to a borehole which they had been using for decades as part of an attempt to get them to move out of the game reserve where they had been livng even before its designation as a reserve. This decision was very important not only adding to jurisprudence protecting indigenous rights to remain on their ancestral lands, but also further solidifying the status of the right to water under international law. The court referred to the recent General Assembly resolution on the right to water and sanitation, and found that denying the Basarwa permission to use, at their own expense, the borehole located on the land where they resided amounted to degrading treatment – which is prohibited, inter alia, in the Convention Against Torture.

I am very excited about this case, for many reasons. But most of all because the Court very wisely observed the indivisibility of human rights. Talking about water, traditionally considered an “economic, social and cultural right,” in the same breath as degrading treatment, generally known as a “civil and political right.” I think that too often we lose sight of the indivisibility of human rights. And especially for indigenous people, we need consider enjoyment of human rights in a holistic way. This holistic understanding is crucial for analysing indigenous rights and the right to water and sanitation.

The right to water and sanitation provides that everyone should have access to sufficient, safe, affordable and acceptable water and sanitation for personal and domestic uses. With regard to water, this means water for drinking, cooking, washing clothes and dishes, and basic personal hygiene. Water for agriculture falls under the rubric of the right to food. And water for cultural and spiritual life comes within the understanding of cultural rights, as well as specific rights guaranteed to indigenous peoples. Clearly, these lines get blurred all the time, and individuals do not categorize their water uses into these rigid categories. To understand the individual experience, and the loss of dignity which can occur when access to water is denied, we must take a holistic view.

As you may know, my mandate is part of a larger system called the special procedures system. We are experts appointed by the UN Human Rights Council to examine specific themes related to human rights. James Anaya, the Special Rapporteur on the rights of indigenous peoples, who was here last week, is also part of this system. But there are also other experts, on the right to food, the right to health, the right to education, on torture, on arbitrary detention, and so on. You have probably been in touch with these mandates. We have the capacity to work jointly to raise concern about situations of violations of indigenous peoples rights. What I see when I receive information related to water and indigenous peoples is that it very often also concerns many other mandates. When violations of the right to water are being experienced, sadly, a host of other deprivations and violations are also reported.

I would like to conclude by encouraging people fighting for indigenous peoples rights to continue to engage with the international human rights system - including the system of special procedures, as well as the treaty bodies and the Universal Periodic Review. I express my full support to activism at the national and regional levels as well. I know the sense of frustration that many of you might feel in the interaction with these bodies. They don’t react as quickly and as efficiently as you would hope. Their impact is not as pronounced as you would wish. Rest reasured, because I feel the same! However, these efforts are crucial for ending ongoing violations of indigenous peoples rights, including those rights related to water, and to improving their enjoyment of all human rights. The fact that things are hard, the circumstance that sometimes we do not see the light at the end of the tunnel is no reason for giving up. On the contrary. As my favourite Portuguese Poest, Pessoa, once put it”Stones on the path? I collect them all. One day I will build a castle”.

I am looking forward to the discussion, and thank you again for having invited me to participate today.

UNFPII-10 Agenda Item 4 (a): Implementation of the UN Declaration on the Rights of Indigenous Peoples (DRIP). To include un-recognized / unrepresented peoples, maternal rights, hydropower, borders and border militarization.

 This statement we wrote up was not read as written. I think it should be read as a statement by the tribe regarding these important issues. Thank you to Mariana Francisco for the piece on Maternal rights and NAIPC for the piece on Borders.

UNFPII-10 Agenda Item 4 (a): Implementation of the UN Declaration on the Rights of Indigenous Peoples (DRIP).

To include un-recognized / unrepresented peoples, maternal rights, hydropower, borders and border militarization.

Recognizing that the implementation of the DRIP is a final step of the multi-year process of discussion, negotiation and final approval by member states including the final Member, the United States in 2010  

Affirming that, while great excitement rose in the indigenous nations around the world at its inaugural release, the actual implementation of the many articles of the Declaration have become contentious points where the true spirit of the Declaration, diluted and molded to meet narrow definitions of compliance of the member states responsible for enactment, is now a problem,

Affirming further that one of the main obstacles to full implementation is the continued observance by some member states of the principles included in the “Doctrine of Discovery” and The Inter Caetera, Papal Bull of May 4, 1493,[i]

Concerned that if these directives are not actively pursued for revocation as guiding principles by the member states in order that the precepts of the DRIP are implemented without further interference,

Further noting that the following issues:

1) Relative to un-recognized/unrepresented Indigenous people,

2) Those associated with Maternal Rights,

3) Pertaining to the development hydropower dams and the related taking and/or loss of Indigenous homelands, and

4) The more recent escalation of issues pertinent to more strident border enforcement and the militarization of border areas are major issue areas where the implementation of the DRIP, is of utmost urgency,

Submit that this intervention raises the issues sited, to the forefront for thorough scrutiny with the caveat that it is in no way presented as an indictment of member States or of any one particular geographic area over another. It is solely an appraisal of the issues and an issuance, from the global indigenous community, of recommended actions and solutions to the problem areas identified.

Referring to the issue of Un-recognized / Un-represented Indigenous People, it is recommended that:

1)      Article 33.1 of the UN DRIP posits, “Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions...” Therefore, it is recommended that all states respect the rights of all indigenous peoples to self identify based on their traditional home territory or area of forced relocation as the case may be. (art 8 2b/c)

2)      The UN ECOSOC advises all signatory states that the DRIP does not differentiate between indigenous peoples. Recognized or unrecognized statuses are not terms of art in the DRIP. 

3)      Reaffirm to States that differentiating between indigenous peoples violates the following items from the DRIP preamble: “Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind.” Further, “Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination, exercise in conformity with international law.”

4)      The UN ECOSOC also advises the United States, specifically, that the current practice of differentiating amongst indigenous peoples is a form of discrimination that is inconsistent with the basic tenets of the UN DRIP, which applies to all indigenous peoples without regard to State determinations.

5)      That State constitutions meet the standards in the UN DRIP for all indigenous peoples.

6)      The UN Permanent Forum consider the inclusion and active and full participation of unrecognized, unrepresented Indigenous Peoples in United Nations activities including, but not limited to the Permanent Forum. Funding to implement this recommendation should be open to all requests for assistance regardless of State sanctioned status.

7)      The UN ECOSOC remind States that full implementation of the UN DRIP, particularly Article 28 section 1 and 2, requires that States are accountable for prevention and redress of cultural genocide.

8)      The Permanent Forum commission a study on indigenous peoples in the US with a focus on the conditions and treatment of unrecognized indigenous peoples.

Regarding the issue of Maternal Rights, it is recommended that:

Re-affirming Article 7 of the DRIP on the rights of Indigenous Peoples to “life, physical and mental integrity…” as well as the right to live in “freedom, peace and security…”  and not be “subjected to any act of genocide or any other act of violence…”. And further reaffirming Article 8(2)a and Article 9 in that IP should not be discriminated against for the exercise of their right to live within their own traditions and customs it is recommended that the UNPFII in ensuring the implementation of the DRIP acknowledge the following statement regarding Maternal Rights:

1)       “The natural maternal right in a healthy environment will provide a harmonious and complete existence through the good practice of relationship and respect with our mother earth. Such right is conducted and directed through the knowledge of the maternal cosmovision. The maternal right has been in the darkness, is invisible before the practices of genocide by the government states, and has caused a physical, mental and psychological damage in both mother and child. The government state has permitted the criminal activity and narco-traffic and it is not given any value to nor recognized maternal rights. The maternal right can be an alternative for the social peace and order that we are always looking for.”

Article 36.1 states “Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes…”

In Reference to Borders and Border Militarization, it is recommended that the statement of the North American Indigenous Peoples Caucus be included in toto:

1)      On February 5, 2011, President Obama and Prime Minister Harper announced negotiations aimed at sweeping away obstructions to trade while integrating efforts to deter “criminals” and “terrorists” regarding Canada and U.S. border management. Indigenous Peoples in North America are divided physically, culturally, socially and economically by artificial borders maintained under the guise of “homeland security.” The Eurocentric primacy of ‘security’ discriminates against the ability of Indigenous Peoples to maintain their historical cultural, social and economic relationships.  Indigenous Peoples also have rights to peace and security as set out under the UN Charter. The NAIPC recommends the UNPFII to urge the Governments of Canada and the United States to work with the Indigenous Peoples to ensure respect for the Jay Treaty and UNDRIP Article 36 in the context of Canada-US Beyond the Border Working Group discussions.

Additionally the following points are raised for inclusion and action:

1)      Western Hemispheric Travel Initiative has displaced the Indigenous peoples and increased violence and drug trafficking, affected tribal nations around California, Texas and Arizona, and, as in many areas around the globe has increased the military presence in border areas. Article 36 and Article 30, sections 1 and 2,  address the issue as these areas refer to lands seized or ceded but still contain areas of cultural and spiritual significance to the Indigenous peoples;

2)      Indigenous people stopped from crossing borders where there are contiguous tribal land areas (whether housing or sacred/ceremonial use lands) have their rights under the DRIP violated;

3)      The safety and security of women and children is in jeopardy and some are jailed. Indigenous people are assaulted in these areas as a result of the failure of Member states to follow the basic tenets and spirit of the DRIP;

4)       Article 36 referring to those “…divided by international borders…” becomes more important in regions affected by developments post-world war, and those where border wars still occur.

5)      In the Final Report of the Permanent Forum 2010, paragraph 98, the Forum commented and urged members to address border issues and take effective measures to implement article 36. It is strongly recommended that the Forum obtain said report to update the people on the progress of the action item cited in Paragraph 98.

Referring to the issue of Hydropower, it is recommended that:

Indigenous people worldwide are targeted by development of dams and the changing waterways of the Worlds Rivers. Indigenous peoples are rarely if ever consulted prior to the development of projects of this nature and surely are sorely if at all compensated. More and more the world has become aware of exterminations and genocide of Indigenous peoples far from public view for the taking of homelands and areas of cultural heritage for flooding or private, corporate development. Article 10 clearly states that Indigenous peoples shall “not be forcibly removed from their lands…” and that “… no relocation shall take place without free, prior, informed consent…” and “after agreement on just and fair compensation…”

1)      The rights of Indigenous peoples to access traditional places, protections of waters and tribal lands, and the ability to continue the traditional lifeway as well as the principle of self-determination (Articles pertaining include:10, 25,28,29,31) need to be reinforced and reported on as to compliance by Member States of these basic, human, rights and sureties.

 Final Recommendations

It is hereby believed that these recommendations may require

1)      Member States to engage in Constitutional change to include their Indigenous peoples, (those recognized or not and whose representation today is limited at best).

2)       It will require a remapping of the lands of the Indigenous so that it is included accurately within the boundaries of the Member State.

It is further believed that

1)      There will be a need for a reporting mechanism to report on what Member States have undertaken in their pursuit of implementing the DRIP. This is important in areas where a Member State’s indigenous people have been forced to relocate or have migrated due to self-survival.

2)       Each agency that works with or is responsible to ensure Indigenous peoples rights need to report on their progress and that consultation with the Special Rapporteur is conducted by the next gathering of the Forum following acceptance of this recommendation.

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[i] Papal Bulls of the 15th century gave Christian explorers the right to claim lands they "discovered" and lay claim to those lands for their Christian Monarchs. Any land that was not inhabited by Christians was available to be "discovered", claimed, and exploited. If the "pagan" inhabitants could be converted, they might be spared. If not, they could be enslaved or killed.
The Discovery Doctrine is a concept of public international law expounded by the United States Supreme Court in a series of decisions, initially in Johnson v. M'Intosh in 1823. The doctrine was Chief Justice John Marshall's explanation of the way in which colonial powers laid claim to newly discovered lands during the Age of Discovery. Under it, title to newly discovered lands lay with the government whose subjects discovered new territory. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments.
John Marshall, who is most credited with describing the doctrine, did not voice wholehearted support of the doctrine even while using it to justify judicial decisions. He pointed to the doctrine as simple fact, looking at the possession-takings, which had been supported by it as things, which had occurred and had to be recognized. The supposedly inferior character of native cultures was a reason for the doctrine having been used, but whether or not that was justified was not relevant for Marshall.
This Doctrine governs United States Indian Law today and has been cited as recently as 2005 in the decision City Of Sherrill V. Oneida Indian Nation Of N.Y.

Submission from the Winnemem Wintu Tribe on UNFPII-10 Agenda Item 7: Half Day on Water Presented by Caleen Sisk-Franco, Chief and Spiritual Leader

Submission from the Winnemem Wintu Tribe on UNFPII-10
Agenda Item 7: Half Day on Water
Presented by Caleen Sisk-Franco, Chief and Spiritual Leader

Hestum chaleetun. Ne-to yet Kaa-aktus. Nees Tłheet. Teen teen iyeebaada lenda-mis eelawee Winnemem Wintu. Sawal miiyo mes baales bom, pee ha-t bohaa Wintun Tot.

Good afternoon Madame Chairperson, Members of the UN Permanent Forum on Indigenous Issues, and esteemed colleagues. My name is Caleen Sisk-Franco and I am the hereditary traditional Chief and Spiritual Leader of the Winnemem Wintu Tribe.

Sawal mem. Sawal suuhana. Water is sacred. Water is life. Water is a great spiritual being. We are a water people. We come from a sacred spring and are the keepers of the water in our River and of all of the things that rely on that watershed out to the ocean. We understand that all things are connected. Nothing survives without water.

We understand and articulate our human rights to include the right to protect traditional cultural properties for our future generations. The water in our river, the water in our sacred spring, and the water we need to supply our homes are basic to our human rights and we must pass these down to our children and grandchildren. The water in our spring and river is part of our ceremonial practices. It provides the environment for our sacred salmon that holds our world together.

Providing access to water is not sufficient however. Water, the veins of Mother Earth, connected to everything, has needs too. Water needs our songs and ceremonies. It needs to flow freely. It needs our salmon swimming in it to clean it and to distribute nutrients to the rivers and streams and back to the ocean.

For us, salmon are inseparable from water. Both are necessary elements of our survival. We believe that when the last salmon is gone the people will be gone too. We know that salmon are the ultimate climate changers. Without salmon swimming in our waters the climate will continue to change in ways that will be devastating to mother earth. We need our traditional homelands and our homelands, including our water, need us to do the job we were put here to do.

We, like many indigenous peoples around the world, are being denied our human rights to access without interruption, sing to, use, and protect our water. The denial of our tribal existence by the US government leaves us without the basic protections we deserve. For us to achieve our indigenous rights and responsibilities to our water the US must reverse its discriminatory practices that have created two classes of American Indians.

We call on the Permanent Forum to:

•  Again transmit your recommendation from the 3rd session, Item 82, “that Governments conduct studies on how the diversion of rivers and creation of dams, mining and mineral extraction, energy development, the mining of groundwater and the use of aquifers for industrial and commercial purposes will affect the lives of indigenous communities prior to conducting any of these actions in order to ensure that indigenous peoples are not confronted with such problems as increasing scarcity of freshwater, the toxic contamination of indigenous peoples’ territories and the lack of access of indigenous communities and other life forms to water, including oceans.” Further, the Permanent Forum should clarify that such studies should be conducted prior to modification of any existing projects.
•  Again transmit your recommendation from the 4th Session, item 29, that, “immediate steps be taken within the framework of the Commission on Sustainable Development to protect water from privatization and from bilateral and multilateral governmental agreements and other incursions that affect the integrity of waters and impoverish communities, particularly indigenous women.”
•  To urge Member States to implement the findings of the Special Rapporteur on Human Right to Water and Sanitation.
•  Call for a study to educate people about the number of contaminated streams, springs, rivers, groundwater, dams, and reservoirs, etc. with recommendations to return waters to natural, clean status.
•  Urge the US to fully implement the Declaration for all American Indians to assure their ability to exercise their indigenous rights to water.

Hee Chala Beskin!

2001 Letter from Florence regarding Recognition

I was going through some old letters Grams had wanted us to send and this one from 2001 stuck out like a sore thumb. Seems like in the past 10 years we would have been able to garner enough support to have our continually elected "representatives" move our case forward. These are the same concerns written of in the 1889 letter to President Benjamin Harrison. I present it to you again.

Florence V. Jones, Spiritual Leader of the Traditional Winnemem Band of Wintu Indians.  This statement made to announce her feelings regarding the recognition of the Traditional Winnemem Band of Wintu by the U.S. Government.

Florence V. Jones believes that the Winnemem Wintu people are in need of protection for their sacred sites and for the perpetuation of their ceremonies and traditional ways.  She has always indicated that the Winnemem Wintu have been led by “hand me down to hand me down” through the generations to her and her successor and great niece, Caleen Sisk-Franco.  Florence is a direct descendent of the last great chiefs of the Winnemem Wintu: Norelputis, Dolikentilema (her grand father), Dolikentilema (her father William Curl), Jenny Curl, herself and now Caleen Sisk-Franco.

It is for this reason that Florence feels it important to state her opinion of the status of the Winnemem Wintu and their continued struggle for recognition.  Primarily, Florence believes that all Wintu are “her people” This includes those Wintu far to the south and to the west of the McCloud River.  However, she also believes that the times have changed and with the state of the country as it is each group should decide how they operate and survive in the current world.  She continues to pray for all the Wintu, but believes that her ceremonies and her sacred places need to have a special protection that only separate recognition for the Traditional Winnemem Band of Wintu will be able to secure.

Over the past 12 years, Florence has directed the keepers of her ceremony to take on several challenges.  The first of these was in 1990 when she directed Caleen Sisk-Franco to undergo a fast on the site of the Toyon-Wintu Center to attain recognition.  This fast lasted 21 days, brought the issue of the Wintu as a whole to the attention of the United States government, and generated assurances that a remedy would soon follow. 

This fast preceded her directive for the Winnemem to contact the timber company, Sierra Pacific Industries, to obtain easements to allow access and protection to sacred sites on Salt Mountain (aka Cold Spring Mountain) for the Traditional Winnemem Wintu.  The keepers of her ceremony, with the legal assistance of Claire Cummings, succeeded in this task and hold easements in the name of the Winnemem Wintu for those sites.

In 1993, Florence again directed her ceremony keepers to undergo a fast, again for recognition and the restoration of health benefits for the Winnemem band and the general Wintu population at large.  This fast begun by Mark Franco and Richard Wilson, occurred simultaneously with a trip made by Florence, Caleen and a contingent of Wintu people to Washington DC where she spoke with Ada Deer, then assistant secretary of the Interior for Indian Affairs.  This trip again was for the benefit of the Winnemem and the general Wintu.  Upon obtaining assurances from the government that our health care programs remained intact, Florence cancelled the fast.

In 1998, Florence directed her successors to increase their efforts for recognition of the Winnemem.  This followed the deaths of our elders: Emerson Miles, Calvin Sisk, Leona Barnes and others.  Since that time, we have diligently performed our tasks making numerous trips nationwide in an attempt to obtain recognition for the Winnemem and the general Wintu people.

Florence is now 93 years old.  She has again been our beacon of strength and our direction.  She has now told us to work for the Winnemem Wintu as a separate Traditional band.  This is our charge and our direction.

Florence has told us to pursue the following course of action:

1. Separate from the people who do not carry the traditions, attend ceremony or attend to the sacred places.  The direction she receives from Olelbes has indicated that this is necessary to preserve the lineage of spiritual leaders and the connection they have to all the sacred sites of the Winnemem.
2. Direct our attention to the management of our lands in the best way that will preserve them in the face of economic and societal change.
3. Maintain the ceremonies for the Winnemem and bring our young people up in the spirituality of the Winnemem Wintu, forsaking allegiance to other religions and faiths: Winnemem is the faith of her people.
4. Direct the operations of the Traditional Winnemem Band of Wintu in the traditional way, meaning that the Traditional Winnemem will follow the “hand me down to hand me down” line of succession for leadership.  This is the cause for her to wish our separation.  The traditional way of leadership does not set well with many people.  Those who do not follow the traditional way cannot be leaders of those who do.

At our Spring Ceremony along the McCloud River, Florence told the people “Those who do not believe in (her) the Winnemem way, should leave, and go over the hill.”  She told us all that it is time for the Winnemem to move forward, not for her, but for the little ones who are there to assume their places in the traditional Winnemem world.  She believes that all Wintu bands deserve recognition and indicates that we will all work for the better good, however, the Winnemem must move in the direction the spiritual have indicated.

It is for this reason we write to you, the people of the United States and ask your help.  We need your support to re-affirm our tribal status.  Please write to California’s legislators - Congressman Wally Herger, Senator Barbara Boxer, and Senator Diane Feinstein.  Let them know that we are not alone in this country and that you hear our voice. It is with your help that we may go forward.

Under One Sky,

Mark Franco                            Caleen Sisk-Franco                      Florence V. Jones