Oil Sands Truth: Shut Down the Tar Sands

The Human Right to Water and Indigenous Peoples

"Water is Life"

The Human Right to Water and Indigenous Peoples

Submission to the United Nations High Commissioner on Human Rights by the
International Indian Treaty Council, NGO in Special Consultative Status to the UN
Economic and Social Council

April 13, 2007


The International Indian Treaty Council is pleased to respond to the High
Commissioner's invitation to submit information relevant to the Council on Human
Rights' requested study on the human right to water. We thank the High Commissioner
for her interest in this vital matter. We also underscore the urgent need to review
current relevant standards impacting this issue, and to conduct a comprehensive
study on the human right to water which takes into consideration to concerns,
perspectives, expertise and experiences of Indigenous Peoples around the world.

For Indigenous Peoples, their relationship with the rivers, streams, waterfalls,
lakes, oceans, hot and cold springs, groundwater, rain and snow, coastal seas and
sea ice which they have traditionally used and protected since time immemorial
provides the basis for their traditional subsistence economies (farming, hunting,
gathering, herding and fishing), physical health, sanitation and collective material
survival. But this relationship is also a fundamental requirement and prerequisite
for their spiritual relationship with the natural world which is, in turn, the basis
of their cultural identity, ceremonial practices and sacred responsibility to the
survival of their future generations.

We therefore welcome and applaud the historic decision by the United Nations Human
Rights Council of November 26th 2006 recognizing the right to water as a human
right. Specifically, the Council has requested ". a detailed study on the scope and
content of the relevant human rights obligations related to equitable access to safe
drinking water and sanitation under international human rights instruments, which
includes relevant conclusions and recommendations thereon, to be submitted prior to
the sixth session of the Council."

[ 1 ]

Indigenous Peoples' Right to Water including the right to safe drinking water and
many other interrelated rights has been and continues to be violated by a range of
policies and practices being carried out, condoned and/or allowed by states. These

The implementation and domination of globalization and free trade, which includes
the privatization, commodification and wide-spread appropriation of water without
the free prior informed consent of the Indigenous Peoples affected;
The imposition of non-sustainable development projects by the governments and
private companies. These include mining and other extractive industries, damming,
deforestation, high-pesticide use, toxic waste dumping and incineration, and energy
generation based on fossil fuels which directly result in widespread contamination,
diversion and depletion of clean natural water sources as well as promotion of
desertification and climate change.
National policies and legal systems that allow, favor and give precedence to private
and or/industrial use of water rather over traditional subsistence use by indigenous
peoples which is based on collective use, responsibility for protection and
sustainable methods.
National laws and policies adopted by states which restrict access and control for
Indigenous Peoples of their traditional lands, territories and natural resources
including water, often in violation of existing Treaties, Agreements and
Constructive Arrangements with these same states.

These policies and practices result in violation of a wide range of
internationally-recognized Human Rights for Indigenous Peoples around the world.
These include the Rights of the Child under the Convention Article 24, the Rights to
Health, Food Security, Development, Life, Physical Integrity, Permanent Sovereignty
over Land and Natural Resources, Treaty Rights, Free Prior Informed Consent,
Self-determination, Cultural Rights, Religious Freedom and the Right of Peoples not
to be Deprived of their own Means of Subsistence.


At the 3rd World Water Forum in Kyoto, Japan in March 2003, Indigenous Peoples from
all regions of the world issued a Declaration affirming the comprehensive and
fundamental nature of their Relationship to Water:

"Relationship to Water

"1. We, the Indigenous Peoples from all parts of the world assembled here, reaffirm
our relationship to Mother Earth and responsibility to future generations to raise
our voices in solidarity to speak for the protection of water. We were placed in a
sacred manner on this earth, each in our own sacred and traditional lands and
territories to care for all of creation and to care for water.

"2. We recognize, honor and respect water as sacred and sustains all life. Our
traditional knowledge, laws and ways of life teach us to be responsible in caring
for this sacred gift that connects all life.

"3. Our relationship with our lands, territories and water is the fundamental
physical cultural and spiritual basis for our existence. This relationship to our
Mother Earth requires us to conserve our freshwaters and oceans for the survival of
present and future generations. We assert our role as caretakers with rights and
responsibilities to defend and ensure the protection, availability and purity of
water. We stand united to follow and implement our knowledge and traditional laws
and exercise our right of self-determination to preserve water, and to preserve

UNESCO, at the same 3rd World Water Forum in Kyoto, on 22 March 2003, issued a
Statement to the Ministerial Conference recognizing the Indigenous Declaration and
Indigenous Peoples' relationship to Water

"1. The UNESCO Universal Declaration of Cultural Diversity (2001) and the
Johannesburg Declaration on Sustainable Development (2002) urge the dialogue and
cooperation within human society and among cultures in order to wisely use and
sustainably manage earth's resources. Water is a vital resource, having economic,
ecological, social and spiritual functions. Consequently its management determines
to great extent sustainability. Due to its fundamental role in society's life, water
has a strong cultural dimension. Without understanding and considering the cultural
aspects of our water problems no sustainable solution can be found.

"2. Relations between peoples and their environment are embedded in culture.

"3. The ways in which water is conceived and valued, understood and managed, used or
abused, worshipped or desecrated, are influenced by the cultures of which we are a

"4. Water is life, physical, emotional and spiritual. It should not be considered
merely as an economic resource. Sharing water is an ethical imperative and
expression of human solidarity. The intimate relationship between water and peoples
should be explicitly taken into account in all decision-making processes.

"5. As the frequent failure of "imported solutions" has proven, water resources
management will fail without the full consideration of these cultural implications.

"6. Cultural diversity, developed during the millennia by human societies,
constitutes a treasure of sustainable practices and innovative approaches.
Indigenous knowledge holders should be full partners with scientists to find
solutions for water-related problems.

"7. Indigenous ways of life and knowledge are an integral part of humanity's
heritage and cultural diversity. Indigenous peoples have an important role to play
in sustainable water resources management. In this context, due respect must be
given to indigenous peoples' rights.

Indigenous Peoples at the Fourth World Water Forum, held in Mexico City, Mexico,
March 17-18 2006, issued the Tlatokan Atlahuak Declaration reaffirming the Kyoto
Declaration and the key principles it contained:

"We reaffirm the Indigenous Peoples Kyoto Water Declaration of the 3rd World Water
Forum of Kyoto, Japan of March 2003. It recognizes our relation with our Mother
Earth and our responsibility to future generations. We raise our voices in
solidarity and proclaim the responsibility to protect and defend water. We have been
placed upon this earth, each in our own traditional sacred land and territory to
care for all of creation and water.

"We reaffirm the same Declaration to honor and respect water as a sacred being that
sustains all life. Our traditional knowledge, laws and forms of life teach us to be
responsible and caring for this sacred gift that connects all life.

"We reaffirm that the relationship we have with our lands, territories and water
constitute the physical, cultural and spiritual basis of our existence. The
relationship with our Mother Earth obligates us to conserve our fresh water and seas
for the survival of present and future generations. We assume our roles as
guardians, with rights and responsibilities that defend and guarantee the
protection, availability and purity of water. We unite to respect and implement our
traditional knowledge and laws, and to exercise our right of self determination to
preserve water and life."


Water is a fundamental element in the ceremonial life and spiritual practices of
Indigenous Peoples. It is a sacred and vital cardinal element which can not be owned
and must never be destroyed, disrespected or desecrated. Without water there can be
no life.

The Teachings and Words of our Elders

For the traditional Dineh (Navajo), of the Southwest United States, water is the
sacred essence and source of life, the Female Deity giving life to the world.

In the words of one traditional Dineh, Nebahe Kateney, which were submitted by the
IITC to the former UN Commission on Human Rights in 2002:

"She is given the most ultimate respect not only when drank but when she is
approached at a stream whether It be a brook or a river.

"Water is Great among the traditional Dineh of Big Mountain because the geography of
Black Mesa has two canyons: the Blue Canyon (or Moencopi Wash) and the Wide Ruin
Canyon. These two canyons with all its natural springs represent the Energy Flows of
The Resting Male Mountain and The Resting Female Mountain. Where the two Gender
Entity's heads nearly meet is where the current Peabody Coal mines are located.
Where the feet of these two Spirit Entities is where the confluence of the Wide Ruin
and Blue Canyons are located. It is said that their feet rest upon this "Y" shaped
help support their resting Beings.

"These represent Life of Earth and Sun as they combined its energy to create all
living things. These represent Man and Woman whom, according to these Supreme Laws,
will dwell upon these lands to make the Life for the People. Life means the
vegetations, the medicine, the wild berries, the natural tobacco, the big and small
game, and a traditional lodge with its fireplace. Water Spirits of Black Mesa and
Big Mountain means that the Supreme Law is for the Dineh to always continue to make
Offerings of Precious Stones and Corn Pollen to all of its Sacred Springs. Today,
the ancient Chants that go with the Offerings to the summit of Big Mountain or to
its Sacred Springs recite the stories of such times of creation.

During the 59th session of the UN Commission on Human Rights, Traditional Elder Kee
Watchman, Dineh (Navajo) of Cactus Valley/Red Willow Springs Sovereign Community of
Big Mountain, Arizona, USA offered similar testimony as Mr. Kateney. They both
voiced concern over the treat to Water that their Peoples face from Peabody Western
Coal Company as well as the United States government and Bureau of Indian Affairs
and the plan to extend the strip-mining of coal within the boundaries of Dineh
ancestral lands and use a slurry, a hundreds of miles long pipe to transport the
crushed coal in water to a power generating plant.

"Water is life. to Indigenous cultures and to many other cultures of the world,
water is sacred. Our sacred springs are drying up now, and our sheep can't find
water to drink and our corn needs the water to grow."

Mr. Watchman submitted additional testimony to the IITC stating that contaminated
water from mine run-offs have now destroyed the wild onions, garlic and spinach
plants used for food as well as plants used for medicine in the Blue Canyon area
near his community.

James Main, Sr., a White Clay (Gros Ventre) Elder from Montana, USA provided
information in for a 2004 case study submitted by the IITC to the Convention on
Biological Diversity COPS 7 in Kuala Lumpur. He addressed the irreplaceable
spiritual significance of the Fur Cap or Little Rocky Mountains in his homeland, and
the devastating impacts of 20 years of heap leach cyanide extraction by the Pegasus
Gold Mine on the water systems of those mountains which had once provided clean
drinking water for the Peoples and animals alike.

"Some of [us] got power up there, you know, for healing and helping people. but they
poisoned it, you know. People used to haul water out of there in barrels, go up
there with a team of horses, their wagons, fill their barrels, real nice cold clear
water. Lots of fish in there, trout." He adds, "All that, they just destroyed it,
all the grasses, all the plants and killed the deer. They poisoned deer in those
[cyanide] pits. They found a lot of dead deer and deformed deer. Birds, they say
that when they come to work at those settling ponds there'd be dead ducks, so they'd
shoot them with a .22 so they'd sink you know, wouldn't be floating on the surface."

Mickey Gemmill, cultural leader, Iss-Ahwi (Abalone Shell People), known as the Pit
River Nation in California, USA, before his passing in 2006 was one of the leaders
in the ongoing struggle to prevent corporate geo-thermal energy development at
sacred Medicine Lake at Mt. Shasta. He provided the following words to IITC in 2005
to describe the meaning of that place and convey the irreparable harm that would be
bought about if plans to bring about energy development there succeed:

"To our People and many other tribal Nations, Medicine Lake is a very beautiful and
special place. Medicine Lake and Mt. Shasta were gifts to our Peoples from the
Creator, the One Above. These places are part of our creation and our teachings
about how we leave this world. There is only one place like that for us, where if
you bath in the water in the Lake, and follow the rules the Creator set down for
that place, there can be healing for anyone. It is sacred to the tribes from all
directions that traveled hundreds of miles to come there. It is a place of peace and
healing, where you can both see and feel the spirits that are there. Our Spiritual
People and healers received knowledge and power there, and it was a place of
meditation and training where they went to receive these gifts to protect all life".

These are but a few among countless examples of such teachings by Indigenous elders
around the world describing the life-sustaining importance of water in all its
forms. We share their words with great respect and honor, in hopes that they can
convey at least a part of the profound meaning that water carries for Indigenous


"Profit to non-Natives means money. Profit to Natives means a good life derived from
the land and sea, that's what we're all about. The land we hold in trust is our
wealth. It is the only wealth we could possibly pass on to our children. Good old
Mother Earth with all her bounty and rich culture we have developed from her
treasures is our wealth. Without our homelands, we become true paupers."

Antoinette Helmer, Alaska Native

Profound relationships exist between all Indigenous Peoples and the Water, animals
and plants that are central to their respective traditional food systems. This
connection is deep and abiding for Indigenous Peoples and is essential for their
survival. The Gwich'in of Canada and Alaska, for example, continue to maintain that
their development and survival as a people is based on protection of the caribou and
the ecosystem that sustains them, rather than on oil development on their
traditional lands. They maintain that such development would detrimentally affect
not only the birthing place of the Caribou but would contaminate the water that
supports all life. A statement issued in August 2002 by the Gwich'in Steering
Committee, responding to renewed U.S. government threats to open the caribou calving
ground in the Alaska National Wildlife Refuge to oil exploration, stated: "Our
traditional culture and way of life which is interconnected with the Porcupine
Caribou Herd to meet all our essential needs such as food, clothing, tools,
spirituality and social structure, is at stake."

Many Indigenous communities throughout California, USA including the Pit River and
Elem Pomo also rely on the local waters and fish as their traditional means of
subsistence. By 1999 a total of 13 Northern and Central California bodies of water
were the subjects of fish consumption advisories due to contamination caused by
hundreds of tons of mercury contamination, a toxic legacy of California Gold Rush
which has never been adequately address or cleaned up. This impact goes beyond an
attack on their right to health, means of subsistence and traditional economic
development, although these are profoundly affected. The well-documented health
impacts of mercury contamination of the water sources on unborn babies and young
children are most severe.

The contamination of traditionally-used fish also undermines these Indigenous
Peoples' spiritual and cultural identity, their primary connection to the natural
world and their ability to practice their traditional ceremonies and religion, which
both depend upon and revitalize this connection with each new year. According to Pit
River Tribal representatives and elders from Northern California, USA, the salmon
depicted in their People's flag "stands for the cycle of life and revitalization of
both the Nation and the salmon. It depicts the reliance of Indian Nations on salmon
and on all of the natural world for their survival."

Indigenous Peoples have affirmed these profound connections and impacts at a number
of international gatherings and through Declarations and other initiatives. In April
2002, a consensus of 125 Indigenous delegates (farmers, hunters, pastoralists,
fishers, and gatherers) from 28 countries produced the "Declaration of Atitlán" at
the first Indigenous Peoples' Global Consultation on the Right to Food and Food
Security stated:

"IN AGREEMENT that the content of the Right to Food of Indigenous Peoples is a
collective right based on our special spiritual relationship with Mother Earth, our
lands and territories, environment, and natural resources that provide our
traditional nutrition; underscoring that the means of subsistence of Indigenous
Peoples nourishes our cultures, languages, social life, worldview, and especially
our relationship with Mother Earth; emphasizing that the denial of the Right to Food
for Indigenous Peoples not only denies us our physical survival, but also denies us
our social organization, our cultures, traditions, languages, spirituality,
sovereignty, and total identity; it is a denial of our collective indigenous

TAKING INTO ACCOUNT that the right to development is a collective right of Peoples
as well as of individuals, and that the Right to Food forms a part of the
development process, creating conditions for the enjoyment of all human rights,
fundamental freedoms and well-being,

REMINDED that the Plan of Action and the Declaration of the World Food Summit (1996)
stated that Food Security means "the access of all people to sufficient, safe and
nutritious food to meet their dietary needs and food preferences for an active and
healthy life,"

REMINDED that Food Sovereignty is the right of Peoples to define their own policies
and strategies for the sustainable production, distribution, and consumption of
food, with respect for their own cultures and their own systems of managing natural
resources and rural areas, and is considered to be a precondition for Food Security,

CONSIDERING that Article 5 of the Declaration on the Right to Development (1986)
states that "the refusal to recognize the fundamental right of Peoples to
self-determination," as a fundamental injustice against which the States should take
resolute steps,

KEEPING IN MIND that Article 1 in Common of the International Covenant on Civil and
Political Rights, as well as the International Covenant on Economic, Social, and
Cultural Rights recognizes that all peoples, by virtue of the right to
Self-Determination, may establish and implement their own economic, social, and
cultural development, and their own development strategies, based on their own
vision, and that "in no case may a people be deprived of its own means of

RECOGNIZING that for Indigenous Peoples, the rights to land, water, and territory,
as well as the right to self-determination, are essential for the full realization
of our Food Security and Food Sovereignty,(emphasis supplied).


Both United Nations and Indigenous experts have stressed the far reaching and
inter-related aspects of Indigenous Peoples' relationship to their lands,
territories, and natural resources, which by definition includes water, and have
called upon states to uphold their obligations in this regard.

For example, in the Conclusions and Recommendations from the UN Seminar on
indigenous peoples' permanent sovereignty over natural resources and their
relationship to land, held in Geneva from 25 to 27 January 2006

"Experts note that the right to lands, territories and permanent sovereignty over
natural resources encompasses cultural, spiritual, political, economic,
environmental and social elements which are essential for the existence and survival
of indigenous peoples and require recognition of indigenous peoples' own
understandings of their traditional relationship to their lands, territories and
natural resources, and their own definitions of development."

The Experts endorsed the similar conclusions and recommendations contained in the
final reports of the Special Rapporteur Ms. Erica-Irene Daes on indigenous peoples
and their relationship to their lands and indigenous peoples permanent sovereignty
over natural resources (E/CN.4/Sub.2/2004/30 and E/CN.4/Sub.2/2001/21), which also
strongly emphasized this relationship.

Notably for the purposes of this current study, in recommendation 2, the Experts
also called upon States:

". to address inconsistencies in their national laws, ensuring that laws recognizing
indigenous peoples' rights over their lands and resources are not overridden or
extinguished by other legislation, in particular in relation to extractive
industries, natural resource use and the creation of "protected areas" and to "to
ensure that their national laws and policies relating to Indigenous Peoples right to
land and natural resources are not discriminatory or inconsistent with international
human rights laws and standards."


[ 2 ]

A. The Right to Development and Related Rights;

"The legislation is regrettably even worse than feared. It ignores all of the
concerns which Maori have raised about the issue and involves not just a taking of
the coastline from Maori but also a very real restriction on our tikanga and our
rights under international law and the common law."

-- Ngahiwi Tomoana, Chairman, Ngati Kahungunu Iwi
Incorporated, Aotearoa (New Zealand), addressing the
"Foreshore and Seabed Act" adopted by the New Zealand
government in violation of the Treaty of Waitangi of 1840

The right to development under international law is an inalienable human right by
virtue of which every human person and all peoples are entitled to participate in,
contribute to, and enjoy. The right to development encompasses not only economic
rights but social, cultural and political rights as inherent to the right to
development. The full realization of the political right of peoples to self
determination, including the exercise of their inalienable right to full sovereignty
over their natural wealth and resources including water, are fundamental to the
right to development.

The United Nations Declaration on the Right to Development, concerned that all human
rights are indivisible and interdependent, declares that the promotion and respect
for, and the enjoyment of certain human rights and fundamental freedoms cannot
justify the denial of other human rights and fundamental freedoms.[ 3 ] Any process
of development that violates human rights, even if it improves the enjoyment of some
rights, is by its very nature unsustainable and not consistent with the right to

The impact on Indigenous Peoples of the continued violation of this principle was
noted by the 1990 United Nations Global Consultation on the Right to Development,
which stated that, "the most destructive and prevalent abuses of Indigenous rights
are the direct consequences of development strategies that fail to respect their
fundamental right of self-determination."

The first International Conference on Human Rights also found that "the enjoyment of
economic and social rights is inherently linked with any meaningful enjoyment of
civil and political rights and there is a profound interconnection between the
realization of human rights and economic development." It has long been the position
of Indigenous Peoples and their representatives internationally, that the right to
development requires the recognition of the right of all peoples, including
Indigenous Peoples, to define and determine for themselves the processes and forms
of development appropriate to their cultures, ecosystems and circumstances, based on
the principle of self-determination.

As defined by the Commission on Human Right's Independent Expert (Special
Rapporteur), the right to development is a right to a particular process by which
"all human rights and fundamental freedoms can be fully realized."[ 4 ] Development
itself is described by the Preamble to the Declaration on the Right to Development
as, "a global process which aims at the constant improvement of the well-being of
the entire population and of all individuals on the basis of their active, free and
meaningful participation in development and in the fair distribution of benefits
resulting there from."

In this process of development, as States comply with their obligations to create
conditions for the enjoyment of all human rights, the steps the State or
international actors take in the process of development should actually improve
conditions for the enjoyment of some human rights while not violating any other
human rights.

UNESCO, at the 3rd WWF, also found that in order to assure the right to water for
Indigenous Peoples, all of their rights should be respected. The Indigenous
Declarations from the 3rd and 4th World Water Forums referred to the right of Self
Determination and the right to development, among important rights interdependent
with the right to water.

B. Other United Nations Instruments and Activity Relevant to the Right to Water

1. The United Nations Food and Agriculture Organization, The World Food Summits and
the Right to Food

The United Nations Food and Agriculture Organization (FAO) is the lead U.N. agency
for agriculture, forestry, fisheries and rural development issues. It is made up of
180 member states or governments, plus the European Community. It was founded in
1945 to raise levels of nutrition and standards of living, to improve agricultural
productivity and to improve the condition of rural populations. FAO promotes the
pursuit of "food security," which was defined by world leaders who gathered at the
World Food Summit in 1996.

The World Food Summit and the Rome Declaration on World Food Security (1996)
reaffirmed that democracy and the promotion and protection of human rights and
fundamental freedoms including the right to development are essential for achieving
sustainable food security for all. The Rome Declaration considers the elimination of
poverty essential to improve food security.

The World Food Summit Plan of Action contains a series of seven generalized
commitments, each with a set of bases for action and specific objectives and actions
towards reducing world hunger by half by 2015. Upon first impression, there are many
laudable commitments and goals within the World Food Summit Plan of Action.
Commitments include the creation of enabling conditions to eradicate poverty and for
durable peace, based upon the full participation of women and men. Under this
commitment, Commitment One, Objective and Action 1.1, the States "recognize and
support (sic) indigenous people and their communities in their pursuit of economic
and social development with full respect for their identity, traditions, forms of
social organization and cultural values."

At the World Food Summit, the States also committed to creating conditions within
their States that enable the eradication of poverty, the economic and physical
access by everyone to food and the sustainable development of food production
capacities. They committed to combating pests, drought and desertification on a
national level.

Other commitments include the eradication of poverty through, among other things,
basic education and access to land, water and credit, and sustainable development
projects in food, agriculture, fisheries, forestry and rural development, in order
to maximize the incomes of the poor. Commitment Five details actions and goals that
are offered in preparation for national emergencies in order to meet food
requirements "in ways that encourage recovery, rehabilitation, development and
capacity to satisfy future needs."

But the Commitments of the World Food Summit Plan of Action rely a great deal on the
implementation of a "fair and market oriented world trade system." Commitment Four
declares that "trade is a key element in achieving food security." Objectives and
Actions under this commitment are the development of internal marketing and
transportation systems to facilitate links with international marketing and
transportation systems.

These are precisely the intended outcomes of Plan Puebla Panama and other
mega-development schemes toward which Indigenous Peoples of Mexico and other Central
American states have expressed profound objection and concern. The States rely on
the World Trade Organization to "ensure that developing countries are equal partners
working for effective solutions that improve their access to markets." These
so-called "solutions" coupled with the promotion of genetically modified food plants
and industrialized agriculture models have been identified by United Nations experts
and Indigenous Peoples themselves as precisely the causes of the losses and
degradation of Indigenous peoples lands and waters, which add to rather than reduce
levels of poverty, hunger and malnutrition throughout the world.

In major part, the World Food Summit Plan of Action relies on capital flows, the
investment of dollars with a dollar return, with little regard for larger human
rights issues or impact. It relies on international trade and the WTO and its
members to provide this capital investment. But simply investing dollars in
agriculture and measuring the return, also in dollars, has not created conditions
for the enjoyment of the right to food. This reliance on international trade and
capital flows, this reliance on the generation of dollars, has not improved the
human right to food. It has in fact violated other human rights while also violating
the right to food and the right to water, as United Nations studies and experts, [ 5
] as well as Indigenous Peoples and many other non-governmental and civil society
originations involved in this process continue to point out.

The World Food Summit - five years later (WFS:fyl) was held from June 10 - 13, 2002,
as a follow-up to the 1996 Rome Summit. The end product, the WFS:fyl Declaration
entitled "International Alliance Against Hunger" does not improve on the 1996
Declaration, identifies no new targets or commitments and maintains the 1996 WFS
promotion of free trade and biotechnology as solutions for food insecurity.

Yet as a result of Indigenous Peoples concentrated participation as a thematic group
in the "Non Governmental Organization/Civil Society Forum for Food Sovereignty" that
took place parallel to the WFS: fyl, FAO officials have accepted for consideration a
list of action proposals that includes those contained in the Indigenous Peoples'
Declaration of Atitlán.

The voluntary guidelines to support the progressive realization of the right to
adequate food in the context of national food security were adopted by the 127th
session of the FAO Council in November 2004.

In its part II, Enabling environment, assistance and accountability. The guideline 8
about access to resources and assets state:

8.1 States should facilitate sustainable, non-discriminatory and secure access and
utilization of resources consistent with their national law and with international
law and protect the assets that are important for people's livelihoods. States
should respect and protect the rights of individuals with respect to resources such
as land, water, forests, fisheries and livestock without any discrimination. Where
necessary and appropriate, States should carry out land reforms and other policy
reforms consistent with their human rights obligations and in accordance with the
rule of law in order to secure efficient and equitable access to land and to
strengthen pro-poor growth. Special attention may be given to groups such as
pastoralists and indigenous people and their relation to natural resources.

Guideline 8C in part II state:

8.11 Bearing in mind that access to water in sufficient quantity and quality for all
is fundamental for life and health, States should strive to improve access to, and
promote sustainable use of, water resources and their allocation among users giving
due regard to efficiency and the satisfaction of basic human needs in an equitable
manner and that balances the requirement of preserving or restoring the functioning
of ecosystems with domestic, industrial and agricultural needs, including
safeguarding drinking-water quality.

Guideline 8E in part II state:

8.13 States should consider specific national policies, legal instruments and
supporting mechanisms to protect ecological sustainability and the carrying capacity
of ecosystems to ensure the possibility for increased, sustainable food production
for present and future generations, prevent water pollution, protect the fertility
of the soil, and promote the sustainable management of fisheries and forestry.

2. U.N. Conventions on the Environment [ 6 ] and Indigenous Peoples

In 1972, the United Nations held the World Conference on the Human Environment in
Stockholm, Sweden. The resultant Declaration of the United Nations Conference on the
Human Environment was the first pronouncement by the international community on the
world's environment. Calling for an environment of a quality that permits a life of
dignity and well being, the Conference established the United Nations Environmental
Programme (UNEP), to serve a clearinghouse function for United Nations activity the
field of the environment.

The Stockholm Declaration addressed the issue of the environment and development but
left it up to the States to deal with the growing problem of environmental
degradation as a result of development throughout the world. The Stockholm
Declaration did recognize the connection between human right and the environment,
but in its formulation of a right to the environment, it framed this right as an
individual right even though the right to the environment, like the right of self
determination, the right to development, and the right to peace, are all so-called
"third generation" collective rights of peoples.

The World Conference on the Environment and Development (Rio) was held twenty years
later, in 1992, in Rio de Janeiro, Brazil. Popularly known as "Rio," this conference
led to an explosion of international activity, including international conventions,
with regard to the environment. These include the Convention on Climate Change, the
Convention on Biodiversity and the Convention on the Elimination of Persistent
Organic Pollutants, none of which have been ratified as yet by the United States.

The Rio Conference did nothing to establish the environment as a human right. Mother
Earth herself has no rights that are recognized by international law. Instead, Rio
focused on international trade, calling for a "supportive and open economic systems"
that "lead to economic growth and sustainable development." Its solution to poverty
is more "sustainable development" and the "equitable sharing" of its benefits, with
no definitions or parameters provided for these key terms. Meanwhile, globalization
and imposed industrial development continues to lay waste to the world environment
and to the lands and territories of Indigenous Peoples.

Principle 22 of the Rio Declaration recognizes that:

Indigenous Peoples and their communities. have a vital role in environmental
management and development because of their knowledge and traditional practices.
States should recognize and duly support their identity, culture and interests and
enable their effective participation in the achievement of their sustainable

But Principle 12 calls for "supportive and open international economic systems" that
lead to economic growth and sustainable development, and trade measures that are not
"disguised restrictions on international trade."

The quandary for Indigenous Peoples posed by Rio is two-fold. Although it recognized
the importance of Indigenous Peoples' role in the preservation of Mother Earth, Rio
also called for greater trade globalization; and, while calling for (but not
defining) "sustainable development," it explicitly promotes growth and more
development. Many Indigenous Peoples' representatives regard Rio's use of the
undefined term "sustainable development" as an oxymoron, a self-canceling phrase,
which is used to promote globalization and forms of destructive resource extraction
such as mining that pollutes and poisons ground water and entire river systems for

Agenda 21, the major product of Rio, is a detailed plan of action that attempts to
somehow reconcile these diametrically opposed positions. Section 3 of Agenda 21
calls for strengthening the roles of major groups in development, elements of civil
society that would counter "unsustainable" development. Nine Major groups are
identified, including women, children and youth, non-governmental organizations,
local authorities, workers and trade unions, business and industry, the science and
technological community, farmers, and Indigenous Peoples. But globalization has
progressed without regard to whatever influence these groups have been able to exert
on the World Trade Organization or regional trade organizations like the North
American Free Trade Agreement or international agencies of economic cooperation,
like the IMF.

The World Trade Organization and the International Monetary Fund seem to be
impervious to the perspectives and opinions of these "major groups." And these
international financial and trade institutions have substantially more influence.

Indigenous Peoples have their own Chapter 26 in Agenda 21, which calls for a "full
partnership" with Indigenous Peoples in the accomplishment of the goals of Agenda
21. Chapter 26.3 calls upon the States to "strengthen and facilitate" Indigenous
Peoples' participation in their own development and in external development
activities that may affect them. But only "[I]n accordance with national
legislation," should Indigenous Peoples be accorded greater self-control over
subsistence practices. Indigenous Peoples' rights to their means of subsistence,
universally and totally dependent on clean water sources are profoundly affected in
negative ways by such national legislation.

Chapter 26 pretends to recognizes Indigenous Peoples' rights already established
under International Labor Organization Convention No. 169. But it goes no further
than calling upon the States to seek and incorporate the views of Indigenous Peoples
and their organizations in the implementation and design, adoption and strengthening
of policies to protect Indigenous Peoples intellectual and cultural property [ 7 ]

Other chapters of Agenda 21 also refer to Indigenous Peoples, primarily in the areas
of traditional knowledge, in the case of fisheries and the incorporation of this
knowledge into domestic marine ecosystems management plans, all related to water and
subsistence.[8] . Chapter 11, Combating Deforestation, also calls for Indigenous
"participation" in state activities pertaining to forests. Indigenous Peoples'
ability to sustain themselves, to provide for their major means of subsistence and
to continue the millennial practices in providing for their own means of subsistence
in keeping with their own world view, are profoundly tied to all of these themes
addressed by Agenda 21.

To be sure, Agenda 21 was a step in the right direction, as it did recognize the
importance of Indigenous Peoples in the preservation of the environment. But a
primary failure of Agenda 21 for Indigenous Peoples is that it subsumed their
international human rights to national actions and national legislation, failing to
provide for their right to say "no" to development which negatively impacts their
survival. Indeed, it created the right of States, and through the States,
multinational corporations, to exploit Indigenous traditional knowledge, albeit with
the "participation" of Indigenous Peoples. The inherent contradiction of recognizing
international Indigenous "rights" on one hand but allowing States to determine their
content on the other, can very well be seen as one step forward and two steps back.

Other elements in Agenda 21 related directly to water, such as the chapter on
Protection of the Quality and Supply of Freshwater Sources, and Protection of the
Oceans, have been given little to no attention, or concerted action. Like much of
Agenda 21, these chapters remain promises unfulfilled.

Part of the explosion of international activity after Rio included the establishment
of several United Nations organs to attempt the reconciliation of the contradictory
messages of the Rio Declaration and Agenda 21. The Commission on Sustainable
Development was meant to oversee the activities of Agenda 21, and to study the
problem of "sustainable growth." It was given a broad agenda, including forests and
traditional knowledge. The ad-hoc inter-governmental panel on forests, later the
Intergovernmental Forum on Forests, and now the permanent United Nations Forum on
Forests, was established to work on new "international arrangements" including an
international Convention on Forests that has yet to happen.

While Agenda 21 called for the preservation of forests and their expansion, forest
area losses for the past 20 years exceed the size of India, over 16 million hectares
per year. Worldwatch Institute cites illegal logging (2/3 of wood harvested in
Indonesia is harvested illegally, 80% of logging in Brazil is illegal), and the over
consumption of forest products by the north (77% of the worlds' commercial timber
harvests are consumed by 22% of the world's people, in Japan, Europe, North America,
and now China) as leading causes of forest loss [ 9 ] And forest loss is directly
related to loss of watershed, with devastating impacts for Forest dwelling
Indigenous Peoples.

The World Summit on Sustainable Development (WSSD) was held in Johannesburg,
Republic of South Africa, in August-September of 2002. It was called by the United
Nations to assess the progress made since Rio on sustainable development and the
world's environment, and to set new goals and priorities based upon that assessment.

In reality, globalization and un-sustainable development received a boost at the
WSSD, primarily from the efforts of the United States, which, among other
questionable actions, insisted on language in the declaration on "sustainable
mining." In its assessment of the lamentable state of the world's environment, the
WSSD did not address the negative impacts of the globalization of trade on the
environment or on truly sustainable community-based development. It set no specific
goals or deadlines on any theme relevant to the alarming deterioration of our Mother
Earth and the source of all life which is water.

a) Climate Change

The Framework Convention on Climate Change was a major theme and accomplishment of
Rio. As a framework convention, it is an agreement to agree based upon the
principles and guidelines established by the convention. 170 Nations agreed at Rio
to reduce voluntarily their emissions of greenhouse gasses to 1990 levels. The Kyoto
Protocol on Climate Change was to secure firm commitments from State Parties to the
Convention on specific greenhouse gas reductions and deadlines. The United States is
a signatory but has not ratified either the Convention or the Protocol. The Bush
administration recently withdrew the United States commitment made under the Kyoto

As long recognized by traditional Indigenous Peoples, all things are related, all
things are interdependent. With regard to climate change, the massive loss of
forests, particularly old growth, that serve as a filter to carbon in the
atmosphere, has contributed to a global increase in greenhouse gasses in the
atmosphere. Increased industrial production, particularly in the industrialized
North, and China and a few other developing nations, is an obvious cause. Carbon
emissions increased globally by 9% between 1992 and 2001. Such losses profoundly
affect water.

Climate change affects Indigenous Peoples, their ecosystems and their means of
subsistence profoundly. As peoples dependent on the natural world for subsistence,
the effects on the food chain and the cycles of floods and drought caused by climate
change are increasingly severe. With the melting of the Arctic icecaps, drying of
lakes and springs, desertification, changes in agricultural and migration cycles,
rising coastal waters and the resulting decrease in fish, birds, seal and bear,
Indigenous Peoples are experiencing greater food insecurity, malnutrition and
hunger. The WSSD decried climate change but, in keeping with the United States
position, recommended no fixed goals or deadlines for carbon emission reduction.

b) Persistent Organic Pollutants (POPs)

The 2001 Stockholm Convention on Persistent Organic Pollutants (POPs) was, like the
Convention on Climate Change, a showcase convention at Rio. After several years of
negotiations, in December, 2000 in Johannesburg, South Africa, the language for a
Treaty on POPs was finally approved. The Treaty supports elimination rather than
reduction (as was proposed by the United States), as well as the precautionary
rather than "acceptable risk" approach. This language was strongly advocated by
Indigenous representatives and non-governmental organizations participating in the
negotiating sessions.

At present, the convention prohibits the production and use of 12 chemicals, 9
pesticides, polychlorinated biphenyls (PCBs) and industrial by-products, dioxins and
furans. But there is little information on the other 80,000 chemicals on the market
today and their effects on the environment, human health, and Indigenous Peoples'
health and subsistence.[ 10 ] Less is known of the "cocktail effect" of the
combination of these chemicals once released into the environment, on life in all of
its forms.

The growth of industrialized agriculture in the production of food for export,
relying in many cases on deforestation, and in most cases on high doses of
pesticides, is also affecting the bio-diversity of our planet and our ability to
sustain ourselves, particularly in developing countries and on Indigenous lands.
Water is many times the first indicator of such pollution.

Industrialized agriculture, with its heavy use of pesticides and chemical
fertilizers, is polluting Indigenous Peoples' environment particularly the air and
water. Trans-nationals (with the knowledge and consent of the governments involved)
are marketing pesticides and fertilizers which are currently banned for use in the
United States and Europe but are nevertheless approved for export to Guatemala,
Mexico and other third world countries, further poisoning Indigenous farmers, their
families, communities and their waters and ecosystems. In fact, Indigenous Peoples
consider this to be a serious loophole in the Rotterdam Convention which violates
human rights. The Convention calls upon exporting state parties to inform receiving
parties of the banned or restricted status of the pesticides or other chemicals in
question and provides for prior informed consent by receiving state parties. But it
still allows for this trade in banned toxics, and the local communities who are the
ultimate recipients, many times though unprotected use or indiscriminate aerial
spraying, are not afforded the right to such "prior informed consent".

Indigenous Peoples and their access to clean and safe water are profoundly affected.
POPs proliferate in the atmosphere, carried by water and wind currents from their
industrial origins to the colder regions of the world, where they bio-accumulate in
living beings. Bio-accumulation is exacerbated in Northern climates where POPs tend
to accumulate due to wind and water currents. For example, the Inuit living on
Barring Island, Canada, carry seven times more PCBs in their body that people living
in lower latitudes. Illustrating the potential and alarming impacts on future
generations, POPs also pass through the placenta to the unborn child, causing birth
defects and learning disabilities. Poisoned water accumulates in water plants and
affects the entire aquatic food chain, poisoning fish and sea mammals such as seals,
whales and walruses. Residues of POPs, such as PCBs, dichlorodiphenyltrichloroethane
(DDT) and dioxins then accumulate in blood, fat and mother's breast milk of
Indigenous Peoples dependent on fish and water mammals for their means of

The Indigenous Peoples of the Great Lakes region of the United States and Canada are
also being severely affected by POPs from industrial emissions and the dumping of
industrial waste in much the same way, from eating contaminated fish and wildlife,
drinking water, soil dermal contact from swimming and the consumption of mother's
breast milk. Indigenous women of the Great Lakes area carry PCBs in their bodies in
gross amounts that are passed on to future generations.[ 11 ]

In 1997 a study was conducted on the Indigenous Yaqui Nation in Rio Yaqui Sonora, an
area targeted by the so-called "green revolution" and industrialized agriculture on
the effects of the use of DDT on and around Yaqui traditional lands. The study
detected high levels of multiple pesticides in the in the cord blood of newborns and
in mother's milk. Yaqui children living in areas contaminated by the high use of
pesticides were tested with severe learning and developmental disabilities. Children
living in areas of traditional Indigenous agriculture and little or no use of
pesticides, relying on unpolluted sources of water, scored significantly higher in
neurological and behavioral testing.

The POPs Treaty also requires all Parties to "regulate with the aim of preventing
the production and use" of new pesticides and industrial chemicals which have POPs
properties (toxic, persistent, bioaccumulation, long range transport). Since the
Treaty contains no mechanisms to insure industry responsibility, state parties will
need to exercise maximum responsibly and vigilance to monitor compliance and full
participation of industries, including multi-national corporations.

c) Biodiversity and Traditional Knowledge

The Convention on Biological Diversity (CBD), the second of the showcase conventions
adopted at the Rio Conference, has created some problems for the United States and
its push to "rationalize" intellectual property schemes via the WTO. The CBD is
another framework convention, laying out certain principles of agreement. This
convention relies heavily on periodic meetings of the State Parties, called the
Conference of Parties (COPS), to further the objectives of the convention and
national plans that incorporate principles established by the convention and the
COPS. The United States is not a party to the CBD although it attends the meeting of
the COPS and takes a great interest in influencing their results.

The aim of the Convention on Biological Diversity is the conservation and
sustainable use of the world's biological resources.[ 12 ] Of major interest to
Indigenous Peoples is the CBD's recognition of Indigenous People's contribution to
the preservation of the world's biodiversity. Although perhaps apocryphal, it is
often said that over 80% of the world's remaining biodiversity is found on
Indigenous lands and territories. It is generally accepted that the dominant world
has abused and used up its own.

The CBD's Article 8(j) is of particular interest to Indigenous Peoples:

"(j) Subject to its national legislation, respect, preserve and maintain knowledge,
innovations and practices of indigenous and local communities embodying traditional
lifestyles relevant for the conservation and sustainable use of biological diversity
and promote their wider application with the approval and involvement of the holders
of such knowledge, innovations and practices and encourage the equitable sharing of
the benefits arising from the utilization of such knowledge, innovations and

It must be kept in mind that the CBD is not meant to be entirely a convention for
the conservation of the biosphere, but one devoted to the use, albeit "sustainable."
of biological resources. It also intends to promote the wider application of
traditional knowledge and practices. Substantially, it is an intellectual property

Indigenous Peoples have made some headway at the Conferences of Parties in
participation as well as policy. At its fourth meeting in 1998 in Bratislava,
Slovakia, COPS IV established an open ended Intersessional working group on the
implementation of Article 8(j). This working group, attended by Indigenous Peoples
as well as States, is meant to provide advice and recommendations to the COPS on the
implementation of article 8(j). And although the CBD specifically recognizes the
right of States (ironically calling it "sovereignty") to exploit biological
resources, it does offer the potential for some measure of protection of
biodiversity and traditional knowledge. But such protections are not extended to the
water which sustains this biodiversity.

For example, under its national plan pursuant to article 8(j), the Philippines, by
law, requires the free and informed consent of Indigenous Peoples before any
prospecting, biological or mineral, on their lands. In the case of Indigenous
Peoples, the law specifies that bio-prospecting and use shall be allowed "within the
ancestral lands and domains of indigenous cultural communities only with the prior
informed consent of such communities, obtained in accordance with the customary laws
of the concerned community."[ 13 ] Although the results have yet to be proven,
Indigenous Peoples can defend their right to water under this Executive Order.

The Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and
Social Impact Assessments Regarding Developments Proposed to Take Place on, or which
are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied
or Used by Indigenous and Local Communities were developed pursuant to task 9 of the
programme of work on Article 8(j) and related provisions adopted by the Conference
of the Parties of the Convention on Biological Diversity at its fifth meeting, in
May 2000:


A. Cultural impact assessments
24. Through the cultural impact assessment process, and particularly during the
screening and scoping phases, the issues that are of particular cultural concern
should be identified, such as cultural heritage, religions, beliefs and sacred
teachings, customary practices, forms of social organization, systems of natural
resource use, including patterns of land use, places of cultural significance,
economic valuation of cultural resources, sacred sites, ceremonies, languages,
customary law systems, and political structures, roles and customs. The possible
impacts on all aspects of culture, including sacred sites, should therefore be taken
into consideration while developing cultural impact assessments.

4. Possible impacts on sacred sites and associated ritual or ceremonial activities
31. When developments are proposed to take place on, or which are likely to impact
on, sacred sites and on lands and waters traditionally occupied or used by
indigenous and local communities, personnel associated with such developments should
recognize that many sacred sites, and areas or places of other cultural significance
may have important functions with respect to the conservation and sustainable use of
biological diversity and, by extension, the maintenance of the natural resources
upon which such communities rely for their well-being.

C. Impact assessments and community development plans

56. Any developments proposed to take place on, or which are likely to impact on,
sacred sites and on lands and waters traditionally occupied or used by indigenous
and local communities should maintain a balance between economic, social, cultural
and environmental concerns, on the one hand, while, on the other hand, maximizing
opportunities for the conservation and sustainable use of biological diversity, the
access and equitable sharing of benefits and the recognition of traditional
knowledge, innovations and practices in accordance with Article 8(j) of the
Convention, and should seek to minimize risks to biological diversity. The cultural,
environmental and social impact assessment processes should reflect this.

C. International Human Rights Instruments and Jurisprudence

Some of the most significant existing protections and affirmations of the Right to
Water and related rights for Indigenous Peoples can be found in the existing Human
Rights Covenants and Conventions and the conclusions of the corresponding UN Treaty
monitoring bodies.

For example:

1. The International Covenant on Civil and Political Rights (ICCPR)

Article 27 of the ICCPR states:

"In those States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with other
members of the group, to enjoy their own culture, to profess and practice their own
religion, or to use their own language."

General Comment 23 of the Human Rights Committee is meant to serve as guidance to
the States in their compliance with Article 27:

"7. With regard to the exercise of the cultural rights protected under article 27,
the Committee observes that culture manifests itself in many forms, including a
particular way of life associated with the use of land resources, especially in the
case of Indigenous Peoples. That right may include such traditional activities as
fishing or hunting, and the right to live in reserves protected by law. The
enjoyment of those rights may require positive legal measures of protection and
measures to ensure the effective participation of members of minority communities in
decisions that affect them."[14]

In formulating this General Recommendation, the Human rights Committee relied on
their own jurisprudence, Bernard Ominayak and the Lubicon Lake Band v. Canada.[15]
This very early complaint, filed in 1984 under Optional Protocol 1 to the Covenant
concerned the Provincial government of Alberta's granted of leases to Japanese
transnational corporations for the exploitation of oil, gas, timber and other
natural resources, and the construction of a pulp mill on Lubicon Lake Band
territory.. The resulting environmental degradation had a devastating effect on the
environment including "bodies of water," and as a consequence, on the health of the
Lubicon Lake Band, and on their traditional subsistence practices and traditional
culture and way of life.

Six years after the filing of a complaint, the Committee found a violation of
Article 27 of the ICCPR. [cite] In reaching this conclusion the Committee recognized
that control and use of traditional lands, including bodies of water, was necessary
in the practice of Lubicon culture. Interference with Indigenous traditional land
uses by environmental degradation is not permitted under the ICCPR Article 27.

The Human Rights Committee has also referred to other rights of the Covenant
relevant to water as a natural resource in their examination of State periodic
reports, as for example, their 1999 examination of Canada (CCPR/C/79/Add.105, 7
April 1999):

7. The Committee, while taking note of the concept of self-determination as applied
by Canada to the aboriginal peoples, regrets that no explanation was given by the
delegation concerning the elements that make up that concept, and urges the State
party to report adequately on implementation of article 1 of the Covenant in its
next periodic report.

8. The Committee notes that, as the State party acknowledged, the situation of the
aboriginal peoples remains "the most pressing human rights issue facing Canadians".
In this connection, the Committee is particularly concerned that the State party has
not yet implemented the recommendations of the Royal Commission on Aboriginal
Peoples (RCAP). With reference to the conclusion by RCAP that without a greater
share of lands and resources institutions of aboriginal self-government will fail,
the Committee emphasizes that the right to self-determination requires, inter alia,
that all peoples must be able to freely dispose of their natural wealth and
resources and that they may not be deprived of their own means of subsistence (art.
1, para. 2). The Committee recommends that decisive and urgent action be taken
towards the full implementation of the RCAP recommendations on land and resource
allocation. The Committee also recommends that the practice of extinguishing
inherent aboriginal rights be abandoned as incompatible with article 1 of the

With reference to Article 27, the Human Rights Committee recommended that Suriname
adopt specific legislation to prevent the poisoning of Indigenous Peoples/

Clearly, under the International Covenant on Civil and Political rights,
particularly Articles 1 and 27, the enjoyment of the right to water is critical to
the enjoyment of the right of Self Determination and the right to the practice of

2. The International Convention on the Elimination of all Forms of Racial

Great advances in the recognition of Indigenous human rights and fundamental
freedoms continue to be made by the CERD Committee. These advances also indicate the
importance of water to the survival of Indigenous Peoples as Peoples.

The CERD Committee's General Recommendation XXIII, Indigenous Peoples (Fifty first
Session, 1997) sets the following standards:

3. The Committee is conscious of the fact that in many regions of the world
indigenous peoples have been, and are still being, discriminated against and
deprived of their human rights and fundamental freedoms and in particular that they
have lost their land and resources to colonists, commercial companies and State
enterprises. Consequently, the preservation of their culture and their historical
identity has been and still is jeopardized.

4. The Committee calls in particular upon States parties to:

(a) Recognize and respect indigenous distinct culture, history, language and way of
life as an enrichment of the State's cultural identity and to promote its

(b) Ensure that members of indigenous peoples are free and equal in dignity and
rights and free from any discrimination, in particular that based on indigenous
origin or identity;

(c) Provide indigenous peoples with conditions allowing for a sustainable economic
and social development compatible with their cultural characteristics;

(d) Ensure that members of indigenous peoples have equal rights in respect of
effective participation in public life and that no decisions directly relating to
their rights and interests are taken without their informed consent;

(e) Ensure that indigenous communities can exercise their rights to practise and
revitalize their cultural traditions and customs and to preserve and to practise
their languages.

5. The Committee especially calls upon States parties to recognize and protect the
rights of indigenous peoples to own, develop, control and use their communal lands,
territories and resources and, where they have been deprived of their lands and
territories traditionally owned or otherwise inhabited or used without their free
and informed consent, to take steps to return those lands and territories. Only when
this is for factual reasons not possible, the right to restitution should be
substituted by the right to just, fair and prompt compensation. Such compensation
should as far as possible take the form of lands and territories.

In its examination of State Parties periodic reports, the CERD Committee has also
examined Indigenous People' access to water. In an examination of Guyana's, the
Committee voiced concern over the State's recognition of rights of ownership and
possession of "bodies of water and subsoil resources."[17] In examinations of Costa
Rica and Colombia, the Committee noted the lack of access to water by Indigenous
Communities.[ 18 ] And in their Statement to the World Summit on Sustainable
Development, the CERD Committee affirmed that State policies violate the rights of
Indigenous Peoples to freedom, equality and adequate access to basic needs such as
clean water. The Committee also noted that negative aspects of globalization
included water pollution.(cite)

The CERD Committee, under its Early Warning and Urgent Action Procedure, raised the
issue of water and Indigenous Peoples of Peru, in a letter dated August 18, 2006.
The letter requested further information in the State's next periodic report on
allegations involving the drainage of surface and underground water from the
grasslands of the Altiplano, leading to the desertification and sanitization of the
ancestral lands of the Aymara Indigenous Peoples. Among other information sought,
the letter raised the issues of the subsistence of Indigenous Peoples and the
actions of transnational mining companies in Peru.

More recently, in their 2007 examination of Canada's Periodic report, based upon
parallel reports from Indigenous Peoples and their organizations, such as the
Western Shoshone in Nevada, United States, and Guatemala, concerning the poisoning
and pollution of water abroad, by Canadian transnational gold mining corporations,
the CERD Committee made the following Conclusions and Recommendations:[ 19]

17. The Committee notes with concern the reports of adverse effects of economic
activities connected with the exploitation of natural resources in countries outside
Canada by transnational corporations registered in Canada on the right to land,
health, living environment and the way of life of indigenous peoples living in these
regions (article 2.1d), article 4 a) and article 5e)).

In light of article 2.1 d) and article 4 a) and b) of the Convention and of its
general recommendation 23 (1997) on the rights of indigenous peoples, the Committee
encourages the State party to take appropriate legislative or administrative
measures to prevent acts of transnational corporations registered in Canada which
negatively impact on the enjoyment of rights of indigenous peoples in territories
outside Canada. In particular, the Committee recommends to the State party that it
explore ways to hold transnational corporations registered in Canada accountable.
The Committee requests the State party to include in its next periodic report
information on the effects of activities of transnational corporations registered in
Canada on indigenous peoples abroad and on any measures taken in this regard.
(emphasis supplied)

This groundbreaking finding by the CERD Committee will have a great impact on the
rights of Indigenous Peoples to clean and safe water all over the world.

3. The International Covenant on Economic, Social and Cultural Rights

With regard to Indigenous Peoples, the ICESC Committee General Comment No. 14: The
right to the highest attainable standard of Health (Article 12), recognizes in
paragraph 27, the importance of lands and resources to the health of Indigenous

The Committee notes that, in indigenous communities, the health of the individual is
often linked to the health of the society as a whole, and has a collective
dimension. In this respect, the Committee considers that development-related
activities that lead to the displacement of indigenous peoples against their will
from their traditional territories and environment, denying them their sources of
nutrition and breaking their symbolic relationship with their lands, has a
deleterious effect on their health.

This same paragraph calls for the protection of Indigenous Peoples' "vital medicinal
plants, animals and minerals necessary to the full enjoyment of health." These
elements necessary for the enjoyment of the right to health rely on clean water.

Again, all of these rights, in relation to Indigenous Peoples, protect their right
to water.

General comment No. 15: The right to water (arts. 11 and 12 of the Covenant) echo
these rights and issue direct standards for Indigenous Peoples' right to water:

7. The Committee notes the importance of ensuring sustainable access to water
resources for agriculture to realize the right to adequate food (see general comment

No. 12 (1999)). Attention should be given to ensuring that disadvantaged and
marginalized farmers, including women farmers, have equitable access to water and
water management systems, including sustainable rain harvesting and irrigation
technology. Taking note of the duty in article 1, paragraph 2, of the Covenant,
which provides that a people may not "be deprived of its means of subsistence",
States parties should ensure that there is adequate access to water for subsistence
farming and for securing the livelihoods of indigenous peoples.

16. Whereas the right to water applies to everyone, States parties should give
special attention to those individuals and groups who have traditionally faced
difficulties in exercising this right, including women, children, minority groups,
indigenous peoples, refugees, asylum- seekers, internally displaced persons, migrant
workers, prisoners and detainees. In particular, States parties should take steps to
ensure that:

(d) Indigenous peoples' access to water resources on their ancestral lands is
protected from encroachment and unlawful pollution. States should provide resources
for indigenous peoples to design deliver and control their access to water; ..

The ICESC Committee has applied these norms relative to water and related rights
including health, in their Concluding Observations from their examination of State
Periodic reports under the Covenant. The following are examples from 2006:

· Norway, E/C.12/1/Add.109, 23/06/2005
26. The Committee urges the State party to ensure that the Finnmark Act, which is
currently being considered by parliament, gives due regard to the rights of the Sami
people to participate in the management and control of natural resources in the
county of Finnmark. The Committee requests the State party to provide in its next
periodic report updated information about the implementation of the Finnmark Act and
the extent to which the opinions of representatives of the Sami people have been
taken into consideration.

· Chile, E/C.12/1/Add.105 26 November 2004.3
7. The Committee welcomes measures taken to improve the situation of indigenous
peoples, including the adoption of the Indigenous People Act (Act No. 19.253) of
1993, the establishment of the National Indigenous Development Corporation (CONADI)
and the Indigenous Land and Water Fund, and the recently announced New Deal Policy
(Política de Nuevo Trato) 2004-2010.

The Committee notes with concern the lack of constitutional recognition of
indigenous peoples in the State party and that indigenous peoples, despite the
existence of various programmes and policies to improve their situation, remain
disadvantaged in the enjoyment of their rights guaranteed by the Covenant. It also
regrets that the State party has not ratified ILO Convention No. 169 (1989)
concerning indigenous and tribal peoples, and that unsettled claims over indigenous
lands and national resources remain a source of conflict and confrontation.

· Canada, E/C.12/CAN/CO/5, 19 May 2006
5. The Committee notes with appreciation the reduction in disparities between
Aboriginal people and the rest of the population in the State party with regard to
infant mortality and secondary education.

11. The Committee regrets that most of its 1993 and 1998 recommendations have not
been implemented, and that the State party has not addressed in an effective manner
the following principal subjects of concern, which were stated in relation to the
second and third periodic reports, and which are still relevant: [.]

d) The disparities that still persist between Aboriginal peoples and the rest of the
Canadian population in the enjoyment of Covenant rights, as well as the
discrimination still experienced by Aboriginal women in matters of matrimonial

15. The Committee is concerned that, despite Canada's economic prosperity and the
reduction of the number of people living below the Low Income Cut Off, 11.2 percent
of its population still lived in poverty in 2004, and that significant differences
in levels of poverty persist between Provinces and Territories. The Committee also
notes with particular concern that poverty rates remain very high among
disadvantaged and marginalized individuals and groups such as Aboriginal peoples,

African-Canadians, immigrants, persons with disabilities, youth, low -income women
and single mothers. In a number of jurisdictions, including British Columbia,
poverty rates have increased among single mothers and children in the period between
1998 and 2003. The Committee is also concerned by the significant disparities still
remaining between Aboriginal people and the rest of the population in areas of
employment, access to water, health, housing and education, and by the failure of
the State party to fully acknowledge the barriers faced by African-Canadians in the
enjoyment of their rights under the Covenant.

· México, E/C.12/CO/MEX/4, 17 May 2006
10. The Committee is concerned about reports that members of indigenous and local
communities opposing the construction of the "La Parota Hydroelectric Dam" or other
projects under the Plan Puebla Panama are not properly consulted and are sometimes
forcefully prevented from participating in local assemblies concerning the
implementation of these projects. It is also concerned that the construction of the
La Parota Dam would cause the flooding of 17.000 hectares of land inhabited or
cultivated by indigenous and local farming communities, that it would lead to
environmental depletion and reportedly displace 25.000 people and that it would
also, according to the Latin American Water Tribunal, violate the communal land
rights of the affected communities, as well as their economic, social and cultural

27. The Committee notes with concern that the collective authorship of indigenous
peoples of their traditional knowledge and cultural heritage is not protected by the
Federal Copyright Act or in other legislation of the State party.

28. The Committee urges the State party to ensure that the indigenous and local
communities affected by the La Parota Hydroelectric Dam Project or other large-scale
projects on the lands and territories which they own or traditionally occupy or use
are duly consulted, and that their prior informed consent is sought, in any decision
making processes related to these projects affecting their rights and interests
under the Covenant, in line with ILO Convention No. 169 on Indigenous and Tribal

The Committee also urges the State party to recognize the rights of ownership and
possession of indigenous communities to the lands traditionally occupied by them, to
ensure that adequate compensation and/or alternative accommodation and land for
cultivation are provided to the indigenous communities and local farmers affected by
the construction of the La Parota Dam or other construction projects under the Plan
Puebla Panama, and that their economic, social and cultural rights are safeguarded.

In this regard, the State party is referred to the Committee's General Comments Nos.
14 and 15 on the right to the highest attainable standard of health and on the right
to water.

4. The Convention on the Rights of the Child

The Convention on the Rights of the Child, article 24, also recognizes the right of
children to the enjoyment of the highest standard of health and mandates that state
parties " shall pursue full implementation of this right." States are required to
"take appropriate measures to combat disease and malnutrition." through the
provision of adequate nutritious foods and clean drinking water, taking into
consideration the dangers and risks of environmental pollution."

As a result of their Day of Discussion on the Rights of Indigenous Children, 15
Sept. - 3 Oct. 2003, the CRC Committee recommended, under the theme of
non-discrimination, that States implement fully Art. 2 of the Convention, and called
for equal access to water and sanitation by Indigenous Children.

In relevant part, the CRC Draft General Comment on Indigenous Children presently

Child Welfare and Child Abuse (Articles 5, 9, 18, 19, 20, 21, 25 and 27) State
Parties ought to address issues of poverty, discrimination, dislocation and
subsequent housing and potable water problems.

The CRC Committee has addressed the issue of "grave disparities in access to clean
(drinkable) water by Indigenous children: see, India: 26/02/2004, CRC/C/15/Add.228
para. 62; and, Panama: 30/06/2004, CRC/C/15/Add.228 para.62.

In their examination of Peru's Periodic Report (CRC/C/PER/CO/3, 14 March 2006) the
CRC Committee made the following Conclusions and Recommendations:

50. The Committee is concerned about environmental health problems arising from a
lack of access to safe drinking water, inadequate sanitation and contamination by
extractive industries, which mainly affect the health and livelihoods of vulnerable
groups, including children.

51. The Committee reiterates the recommendation of the Special Rapporteur on the
right of everyone to the enjoyment of the highest attainable standard of physical
and mental health, that the State party carry out independent, rights-based
environmental and social impact assessments prior to the setting up of all mining or
other industrial projects that may have harmful impacts on the right to health of
children. The Committee further recommends that the State party strengthen its
efforts to provide sanitation and safe drinking water to all the population, with
special attention to rural and remote areas.

73. The Committee, while acknowledging the State party's efforts in this respect,
notes with concern that indigenous communities continue to face serious difficulties
in the enjoyment of their rights, especially economic, social and cultural rights.
In particular, the Committee is concerned about the lack of recognition of their
land rights, pillaging of their resources, inadequate access to basic services,
health and education, social exclusion and discrimination.

74. The Committee recommends that the State party pursue measures to effectively
address the gap in life opportunities of indigenous children, and take adequate
measures in order to provide protection for the rights of indigenous children as
contained in the Constitution taking into due account the recommendations adopted by
the Committee on its Day of General Discussion on the rights of indigenous children
in September 2003.

5. The Convention on the Elimination of all Forms of Discrimination Against Women

In 2006, in their examination of the Philippines Periodic Report, the CEDAW
Committee made the following Conclusions and Recommendations with regard to, inter
alia Indigenous women and water (CEDAW/C/PHI/CO/6, 25 August 2006):

29. The Committee expresses its concern about the precarious situation of rural and
indigenous women, as well as the Muslim women in the autonomous region of Muslim
Mindanao, who lack access to adequate health services, education, clean water and
sanitation services and credit facilities. The Committee is also concerned about
women's limited access to justice in cases of violence, especially in the conflict
zones, and the lack of sanctions against the perpetrators of such violence. The
Committee is furthermore concerned that the practice of early marriage is persistent
among Muslim women.

30. The Committee calls upon the State party to pay special attention to the needs
of rural women, indigenous women and Muslim women living in the autonomous region of
Muslim Mindanao, ensuring that they have access to health care, social security,
education, clean water and sanitation services, fertile land, income generation
opportunities and participation in decision-making processes. The Committee
recommends that the State party ensure women's access to justice through the
provision of legal aid and take steps to prosecute the perpetrators of violence
against them. It also encourages the State party to provide increased educational
opportunities to Muslim girls to discourage early marriages. The Committee requests
the State party to include in its next report sex-disaggregated data and information
on the de facto position of rural, indigenous and Muslim women, and on the impact of
measures taken and results achieved with policies and programmes implemented for
these groups of women.

D. Other International Standards and Jurisprudence

1. ILO Convention no. 169 Concerning Indigenous and Tribal Peoples in Independent
Countries (1989)

ILO 169 is the only international convention that specifically address the
collective human rights of Indigenous Peoples. Fundamentally, and in several
Articles it expressly Recognizes "the aspirations of these peoples to exercise
control over their own institutions, ways of life and economic development and to
maintain and develop their identities, languages and religions.".

This recognition extends to the right to control their institutions, including those
institutions that determine the use of lands and natural resources and recognize
Indigenous Peoples right to exercise their free and informed consent before the
State can affect them or their lands, territories and resources (Articles 5, 6 and

Although there is no specific reference to the right to water in the Convention,
there is explicit and important recognition of Indigenous Peoples rights to lands
and natural resources:

Article 13

1. In applying the provisions of this Part of the Convention governments shall
respect the special importance for the cultures and spiritual values of the peoples
concerned of their relationship with the lands or territories, or both as
applicable, which they occupy or otherwise use, and in particular the collective
aspects of this relationship.

2. The use of the term lands in Articles 15 and 16 shall include the concept of
territories, which covers the total environment of the areas which the peoples
concerned occupy or otherwise use.

This "total environment" necessarily includes water and bodies of water necessary
for the maintenance of subsistence, spiritual life and culture. And the ownership of
these lands and resources is specifically recognized:

Article 14
1. The rights of ownership and possession of the peoples concerned over the lands
which they traditionally occupy shall be recognised. In addition, measures shall be
taken in appropriate cases to safeguard the right of the peoples concerned to use
lands not exclusively occupied by them, but to which they have traditionally had
access for their subsistence and traditional activities. Particular attention shall
be paid to the situation of nomadic peoples and shifting cultivators in this

2. Governments shall take steps as necessary to identify the lands which the peoples
concerned traditionally occupy, and to guarantee effective protection of their
rights of ownership and possession.

3. Adequate procedures shall be established within the national legal system to
resolve land claims by the peoples concerned.

Article 15
1. The rights of the peoples concerned to the natural resources pertaining to their
lands shall be specially safeguarded. These rights include the right of these
peoples to participate in the use, management and conservation of these resources.

Although only a handful of States have ratified ILO 169 and although the complaints
procedure for violations of the Convention by States is cumbersome and difficult, it
has served to define to the international community and to human rights fora, such
as Treaty Monitoring Bodies and United Nations Rapporteurs, the collective rights of
Indigenous Peoples. The sections quoted above, for example, appear to be the basis
of the CERD Convention's General Recommendation XXIII, often cited in the CERD
Committee's Concluding Observations and Recommendations. The CERD Committee also
recommends as a matter of practice, the adoption of ILO 169 to States.

2. The Organization of American States Jurisprudence

Both the Inter-American Commission on Human Rights (CIDH) and the Inter-American
Court of Human Rights have used ILO 169 to inform their decisions and judgments
particularly with regard to the vindication of ancestral lands and resources of
Indigenous Peoples. Although neither the American Convention on Human Rights or the
American Declaration. on the Rights and Duties of Man expressly recognize the right
to water, an omission also found in the Additional Protocol of San Salvador
(Economic, Social and Cultural Rights), the jurisprudence of both the Commission and
Court have firmly established these rights as appurtenant to the right of Indigenous
Peoples to the ownership and control of their lands and territories.

The right to water, necessary to sustain the life and culture of Indigenous Peoples
has been amply recognized by the Inter-American Court under the American Convention
Article 21, the right to property, in cases such as Caso de la Comunidad Mayagna
(Sumo) Awas Tingni vs. Nicaragua, Judgment of 31 August 2001 paragraph 144 164; and,
Caso Comunidad Sawhoyamaxa vs. Paraguay, Judgment of March 2006 paragraphs 118 -
121. The Inter-American Commission has made similar findings under the American
Declaration, most notably in Caso Comunidades Indígenas Mayas del Distrito de
Toledo, Belice, 12 October 2004.

3. The United Nations Declaration on the Rights of Indigenous Peoples

At the First Session of the new Human Rights Council, on June 29, 2006, the Council
adopted the United Nations Declaration on the Rights of Indigenous Peoples. Although
this historic step toward the recognition of the Collective rights of Indigenous
Peoples has as yet not been adopted by the General Assembly, it still remains the
final official pronouncement of Indigenous Peoples rights by the United Nations.

The United Nations Declaration recognizes the spiritual as well as material
relationship with the land and water, Indigenous Peoples rights to the ownership and
control of ancestral lands and resources and the right of free, prior and informed
consent before the State may affect them:

Article 25

Indigenous peoples have the right to maintain and strengthen their distinctive
spiritual relationship with their traditionally owned or otherwise occupied and used
lands, territories, waters and coastal seas and other resources and to uphold their
responsibilities to future generations in this regard.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership or
other traditional occupation or use, as well as those which they have otherwise

3. States shall give legal recognition and protection to these lands, territories
and resources. Such recognition shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous peoples concerned.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other

2. States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their
free and informed consent prior to the approval of any project affecting their lands
or territories and other resources, particularly in connection with the development,
utilization or exploitation of their mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual impact.


The International Indian Treaty Council is pleased to provide this information to
the High Commissioner for her study on the Right to Water, and we hope that her
study has been aided by this submission.

We thank all the Indigenous Peoples who have made contributions ad who continue to
defend these vital rights in their homelands and communities.

It is clear that the material, spiritual and cultural dimensions of the right to
water for Indigenous Peoples are not only real, but are recognized in various
international human rights standards and jurisprudence. However, it is also clear
that effective mechanisms for implementation of these rights, and in many cases the
political will of states in this regard, are most urgently needed.

We very much hope that all these dimensions will be reflected in the High
Commissioner's study. We look forward to providing additional input and information,
including individual case studies, upon request.

For all our relations.


[1] UN Human Rights Council (hereafter the Council), Decision 2/104 on Human Rights
and Access to Water.

[2] Taken from An Analysis of United States International Policy on Indigenous
Peoples, the Human Right to Food and Food Security prepared by the International
Indian Treaty Council for the First Nations Development Institute, November 15, 2002

[3] Declaration on the Right to Development, Article 9:

1. All the aspects of the right to development set forth in the present Declaration
are indivisible and interdependent and each of them should be considered in the
context of the whole.

2. Nothing in the present Declaration shall be construed as being contrary to the
purposes and principles of the United Nations, or as implying that any State, group
or person has a right to engage in any activity or to perform any act aimed at the
violation of the rights set forth in the Universal Declaration of Human Rights and
in the International Covenants on Human Rights.

[4] Fourth Report of the Independent Expert on the right to development, Mr. Arjun
Sengupta, E/CN.4/2000/WG.18/2, December 20, 2001, Introduction, para. 2, citing,
inter alia his prior reports: First report, E/CN.4/1999/WG.18.2; Second report,
E/CN.4/2000/WG.18/CRP/1; and, Third report, E/CN.4/2001/WB.18.2.

[5] See, Special Rapporteur on the Right to Food, third report to the Human Rights
Commission, UN doc. E/CN.4/2002/58, 10 January 2002. See also, Report of the High
Commissioner on Human Rights, submitted in accordance with Commission on Human
Rights resolution 2001/32, Globalization and its impact on the full enjoyment of
human rights, UN doc. E/CN.4/200254, January 15, 2002, para. 6.

[6] See, fn. 2.

[7] Agenda 21, Chapter 26, 26.4 and 26.5. See, ILO Convention No. 169 concerning
Indigenous and Tribal Peoples in Independent Countries: Article 2 (participation of
Indigenous Peoples in development); Article 4 (protection of Indigenous cultures and
environment); and Article 6 (consultations leading toward, but not requiring,
consent on measures which may affect them directly). Indeed, Agenda 21 falls short
of Article 27 of ILO #169, recognizing that Indigenous Peoples "shall have the right
to decide their own priorities for the process of development as it affects their
lives, beliefs, institutions and spiritual well-being and the lands that they occupy
or otherwise use, and to exercise control, to the extent possible, over their own
economic, social and cultural development." ILO Convention 169 is the only
international convention on Indigenous Peoples and can be regarded as the "bottom"
or basic document establishing recognition of the rights of Indigenous Peoples from
which the development of international human rights standards concerning Indigenous
Peoples should evolve. In no way should United Nations actions or documents reflect
lesser human rights standards than those found in this basic convention.

[8] Agenda 21, Chapter 17, 17.17.

[9] Janet N. Abramovitz, Too Much Talk, Too Little Action on Forests, Worldwatch
Institute, World Summit Policy Brief #3,
http://www.worldwatch.org/worldsummit/briefs/20020416.html, visited September 9,

[10] Anne Platt McGinn, Reducing the Use of Toxic Chemicals Advances Health and
Sustainable Development, Policy Brief #7, Worldwatch Institute, fn. 30.

[11] Transboundary Persistent Organic Pollutants (POPS), Human Rights and Indigenous
Peoples, Indigenous Environmental Network presentation to the Special Rapporteur on
the illicit movement and dumping of toxic and dangerous products and waste, United
Nations Commission on Human Rights, presented by Tom Goldtooth, National Director,
IEN at a meeting with the Special Rapporteur, at the International Indian Treaty
Council, San Francisco, California, December 13, 2001.

[12] "The objectives of this Convention, to be pursued in accordance with its
relevant provisions, are the conservation of biological diversity, the sustainable
use of its components and the fair and equitable sharing of the benefits arising out
of the utilization of genetic resources, including by appropriate access to genetic
resources and by appropriate transfer of relevant technologies, taking into account
all rights over those resources and to technologies, and by appropriate funding."
Article 1, Convention on Biodiversity, found at http://www.biodiv.org/convention,
visited September 11, 2002.

[13] Republic of the Philippine, Executive Order No. 247 (18.5.95), 1995.

[14] General Recommendation No. 23, the rights of minorities (article 27),
CCPR/C/21/Rev.1/Add.5, 08/04/1994.

[15] Communication No. 167/1984; Canada. 10/05/90, CCPR/C/38/D/167/1984

[16] CCPR/CO/80/SUR, 2004.

[17] CERD/GUY/CO/14.4, April 2006.

[18] Costa Rica, CERD/C/60/CO/3, 2002; Colombia, CERD/C/304/Add.10, 1996.

[19] CERD/C/CAN/CO/18, 20 March 2007.


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