33 Rights of Indigenous People

Dr. Aneesh V. Pillai

Learning outcomes

• Introducing students to indigenous people, who they are, where the belong to history and development of indigenous rights.
• Students would also learn various instruments which are responsible for the protection of Indigenous Peoples’ human rights.

Introduction

Indigenous people are those people living within a nation-state prior to the formulation of the nation-state, but these people do not identify with the dominant nation. The International Labour Organization (ILO), provides certain criteria for the identification of indigenous people, these are as follows (i) Descend from a population who inhabited a particular region at the time of conquest, colonisation or establishment of state boundaries. (ii) Retain some or all of their own social, economic, cultural and political institution, irrespective of their legal status. (iii) Have many distinguishing features which make them different from the other section of the national community. (iv) have their status wholly or partially recognised by their own customs or traditions or by special law or regulation. (v) identify themselves as indigenous people.

Indigenous peoples are generally defined as peoples living in an area within a nation-state prior to the formation of a nation-state, but who do not identify with the dominant nation. Generally they are people who have inhabited a land before it was conquered by colonial societies currently governing those territories1. Convention No. 169 of the International Labour Organization (ILO) provides certain criteria for the identification of indigenous peoples. They are: i) Descend from populations who inhabited the country or geographical region at the time of conquest, colonization, or establishment of current state boundaries; ii) Retain some or all of their own social, economic, cultural, and political institutions, irrespective of their legal status; iii) Have social, cultural, and economic conditions that distinguish them from other sections of the national community; iv) Have their status regulated wholly or partially by their own customs or traditions or by special laws or regulations; v) Identify themselves as indigenous peoples.

The international institutions have added certain other criteria’s such as: a) A special relationship with land and natural resources; b) A history of oppression and ongoing conditions of non-dominance; and c) Aspirations to continue to exist as distinct peoples. Analyzing in this context it is generally estimated that, indigenous peoples constitute around 370 million people, spread across some 90 countries around the world. Almost all the countries in the world indigenous people are the poorest and most marginalized group. The rights of indigenous peoples have received serious attention in the past three decades and as a result at international level various human rights instruments were taken for the protection and upliftment of the indigenous people. One of the notable features of these instruments is that it views the rights of indigenous people as a collective or group right rather than an individualistic conception. This is because the very claim for rights by indigenous people is based on the fact they are indigenous.

Rights of Indigenous Peoples: A Collective or Group Right

Indigenous peoples as subjects of international law are entitled to specific collective human rights which have been evolving over the last decades. Collective rights address the group, not the individual, as right-holder, and complement individual human rights. To most indigenous peoples, the individualist conception of human rights is an alien concept. Instead, the community is the entity of reference and individuals and the community are seen as inseparable. Thus collective rights are instrumental for ensuring indigenous peoples’ rights to self-determination, ancestral territories (land and resources), participation in decision making and consent as well as “development with identity” (a concept increasingly used in Latin America). The cornerstone of indigenous peoples’ collective rights is their recognition as peoples.

It is to be noted that an exclusive emphasis on individual rights has not and cannot give effective guarantees for indigenous peoples, who require the simultaneous protection as collectivities in order to survive and flourish as distinct peoples and cultures. Collective rights emphasize the value of protecting indigenous cultures and existence per se and reject assimilation and integration as valid modes of relating to indigenous peoples. It can be seen that major sources of collective human rights of indigenous peoples are ILO Indigenous and Tribal Peoples Convention No. 169, 1989; and UN Declaration on the Rights of Indigenous Peoples, 2007. Some of the collective rights specific to indigenous people are right to self-determination and to lands, territories and resources; to recognition of treaties and the right not to be subjected to forced assimilation; destruction of culture; genocide or any other act of violence; to rights affirming indigenous spirituality, culture, education and social welfare, etc.

Protection of Rights of Indigenous People: A Historical Account

The protection of the rights of indigenous people became an issue from the 16th century due to the expansion of trade and commerce and competition between the various invaders all over the world. One of the oldest document which outlines the basic concept of indigenous people’s rights is De Indis et de Jure Belli Reflectiones written by Francisco de Vitoria in 16th century. In this he discussed the discovery of indigenous population of North America by Spanish adventurers and the violation of the rights of these people. and dealt with the rights and duties of each other. This book created awareness regarding the rights of indigenous people and influenced other scholars to do research in this area. Hugo Grotius, a Dutch scholar, published a treatise on Aboriginal rights entitled De Jure Praedae Commentarius. Grotius adopted many of Vitoria’s concepts and beliefs. These two works were criticized by the Samuel Pufendorf, a contemporary of Grotius, in his renowned work, De Jure Naturae et Gentium. The work of these three scholars is significant because all three recognized the importance and existence of certain fundamental rights of indigenous peoples in international law. Their views were adopted by some modifications by Emmerich Vattel, in the mid-18th century. However these works created only awareness about the rights of indigenous people. The real impetus towards the protection of indigenous people’s rights was after World War I and II when the indigenous people started agitating and claiming more rights against the colonial rulers. As a result the colonial rulers led by the European countries were forced to grant more rights to those indigenous or aboriginal peoples.

At international level the two main organizations concerned with the rights of indigenous people are the International Labour Organization and the United Nations. In 1957, the International Labour Organization adopted a convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (No. 107). It contained articles on general policy, land, employment, training, education, rural industries, social security and health, and administration. The convention provides that the rights of ownership, collective or individual, over lands of the members of indigenous and tribal populations are recognized and that populations concerned shall not be removed without their consent. In cases where removals are necessary, people are to be provided with lands of quality at least equal to that of the lands they occupied previously. Compensation is to be provided in kind, or in cash, or both for losses suffered. This was a first international effort to establish a set of standards for protecting indigenous people’s rights. The emphasis in this convention was on integration rather than on recognition of the distinct characteristics and rights of indigenous people. However, it suffered from various draw backs and as a result it was revised by the ILO. Finally, in 1989 the ILO adopted Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries. It confers international recognition on the specific rights of indigenous peoples, and has already been ratified by many nation-states, making it applicable domestically in those countries.

The United Nations has also taken concrete steps for protecting the rights of indigenous people. In 1982 a Working Group on Indigenous Peoples was created under the auspices of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities. This working group prepared a Draft Universal Declaration of the Rights of Indigenous Peoples. This Draft Declaration was adopted by the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities in 1994. Finally, the UN General Assembly adopted this Draft Declaration as Declaration on Rights of Indigenous Peoples in the year 2007.

Considering the growing importance and recognition of the rights of indigenous and tribal people, the United Nations General Assembly declared the year 1993 as the ‘International Year for the World’s Indigenous People’.9Further, the UN general Assembly in 1993 declared the First International Decade of the World’s Indigenous Peoples. Its main objective was to strengthen international cooperation to solve problems faced by indigenous peoples in areas such as human rights, the environment, development, education and health. So also the UN constituted, The UN Voluntary Fund for the Indigenous Decade to finance Indigenous activities and programs in the year 1993.

The UN General Assembly decided on 23 December 1994 to observe, 9th August every year as the International Day of the World’s Indigenous People’. In 2000, the UN established, the UN Permanent Forum on Indigenous Issues. This forum formally integrates indigenous peoples and their representatives into the structure of the UN. It placed state and non-state actors on an equal footing in a UN permanent representative body for the first time. Its mandate is to discuss and provide recommendations on indigenous peoples’ issues relating to economic and social development, culture, the environment, education, health and human rights.

Another landmark development in 2001 was the appointment of UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people. Subsequently, the year 2005–2010 was declared as the Second International Decade of the World’s Indigenous Peoples. Its main aim was to further strengthen international cooperation to solve problems faced by indigenous peoples. The UN has also established an Inter-Agency Support Group on Indigenous Issues, in 2005 for supporting and promoting the mandate of the UN Permanent Forum on Indigenous Issues within the UN system. Its mandate was later expanded to include support to mandates related to issues of indigenous peoples throughout the inter-governmental system. Yet another major development was the establishment of United Nations Indigenous Peoples’ Partnership (UNIPP), 2011. This system was developed by four institutions, the U.N. International Labour Organization, the U.N. Development Program, the U.N. Office of the High Commissioner for Human Rights, and the U.N. Children’s Fund. It is designed to implement provisions of the U.N. Declaration on the Rights of Indigenous Peoples, 2007.

International Instruments for the Protection of Indigenous Peoples’ Human Rights

At the international level there are numerous instruments which protect and promote the human rights of all individuals. Though these documents are not specifically dealing with the rights of indigenous people, they are applicable to the indigenous people also and the various provisions in these documents are relevant for the protection and promotion of their rights. For example, the UN Charter establishes the foundation for the protection of rights of indigenous people by incorporating the provision of the right of self-determination for all peoples and the duty of all states to promote human rights, including the right to be free of discrimination on the basis of race, sex, language, or religion. The Universal Declaration of Human Rights, 1948 states that all human beings are “equal in dignity and rights.”The UDHR provides that everybody is entitled to the rights in the Declaration, “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The International Covenant on Civil and Political Rights, 1966 in its Article 27 mentions that, “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 the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” All these above provisions which embody the right to self determination, the right to equal dignity and rights, and right to enjoy own culture are very important in the context of indigenous peoples as they are often discriminated and marginalized in the societies.

It is to be noted that the various international instruments on human rights address the issue of discrimination and hence they are also relevant for protecting rights of indigenous peoples’. The International Convention on the Elimination of All Forms of Racial Discrimination, 1963: defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

The Convention on the rights of the Child, 1990 contains various regulations and suggestions on non-discrimination of children. Article 29 mentions right of minorities to education including education on human rights, and to maintain its own cultural identity, language and values. Further, article 30 of CRC states that children of minorities or indigenous origin shall not be denied the right to their own culture, religion or language.

Another important document is the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, 1992. It deals with all minorities, which includes many of the world’s Indigenous Peoples. It deals with rights of minority people as well as the states’ obligations towards them. It addresses the issues of national or ethnic, cultural, religious or linguistic identity of minorities; the free expression and development of culture; association of minorities amongst themselves; participation in decisions regarding the minority; the exercise of minority rights, both individual and in groups; and education of minorities.

The Vienna Declaration and Programme of Action adopted in the World Conference on Human Rights, 1993, “recognizes the inherent dignity and the unique contribution of indigenous people to the development and plurality of society and strongly reaffirms the commitment of the international community to their economic, social and cultural well-being .” So also the Report of the International Conference on Population and Development (1994), specifically states that, the perspectives and needs of indigenous peoples should be included in population, development or environmental programs that affect them, that they should receive population- and development-related services that are socially, culturally and ecologically appropriate. It also highlights that, indigenous peoples should be enabled to have tenure and manage their land, and protect the natural resources and ecosystems on which they depend.

The international law has also paid attention to the role of indigenous people in protection of environment and their right over biodiversity and traditional knowledge. The Rio Declaration of Environment and Development and Agenda 21, 1992 which were adopted in the Earth Summit in Rio de Janeiro recognize the special relationship between Indigenous Peoples and their lands. It accepts that the indigenous peoples have a vital role in environmental management and development because of their traditional knowledge and practices. The Agenda 21 highlights that, for effective utilization of traditional knowledge, indigenous peoples might be given greater control over their land, self-management of their resources and participation in development decisions affecting them. Further, the Convention on Biological Diversity,1992, calls upon its signatories to “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 practices”.

The UN Convention to Combat Desertification, 1994, emphasises on the protection of indigenous traditional knowledge, technologies and practices. The Declaration of Atitlan, 2002 also emphasizes the importance of indigenous peoples’ rights to lands, natural resources and self determination to their overall food security and food sovereignty. Further, Article 9 of the Anchorage Declaration, 2009 calls upon the UN Agencies to address climate change impacts in their strategies and action plans, especially with regard to indigenous peoples.

The two specific and most important documents that address the rights of indigenous peoples in the world are, the International Labour Organization’s Convention No. 169 of 1989 and the U.N. Working Group on Indigenous Population’s Draft Declaration of the Rights of Indigenous Peoples, 2007.

The Convention No.169 is the first international instrument which deals specifically with the rights of indigenous peoples. This Convention is a legally binding international instrument open to ratification and it has been ratified by 20 countries.The convention consists of a Preamble followed by forty-four articles and can be divided in ten parts. This Convention deals with various issues like, land rights, employment, vocational training, social security and health, means of communication and cooperation. The Convention states that governments shall have the responsibility for developing a systematic and coordinated action to protect the rights of indigenous and tribal peoples and ensure that appropriate mechanisms and means are available. The greatest significance of this Convention is that it can be used as is a tool for communication between governments and indigenous peoples and prevent any possible conflicts between them.

The Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly on September 2007 by a majority of 144 states in favour and 4 states against with 11 abstentions. The Declaration consists of a Preamble and 46 Articles. It recognizes various human rights and fundamental freedoms of indigenous peoples such as the right to unrestricted self-determination, an inalienable collective right to the ownership, use and control of lands, territories and other natural resources, their rights in terms of maintaining and developing their own political, religious, cultural and educational institutions along with the protection of their cultural and intellectual property. The Declaration also highlights the need for prior and informed consultation, participation and consent in activities of any kind that has an impact on indigenous peoples, their property or territories. It also establishes the need for fair and adequate compensation for violation of the rights recognized in the Declaration and establishes guarantees against ethnocide and genocide. The Declaration also provides for fair and mutually acceptable procedures to resolve conflicts between indigenous peoples and States, including procedures such as negotiations, mediation, arbitration, national courts and international and regional mechanisms for denouncing and examining human rights violations.

An analysis of all the above international instruments shows that there is great concern for rights of indigenous people at international level. These international instruments protect various collective rights of indigenous peoples such as self-determination, collective right to the ownership, use and control of lands, territories and other natural resources, their rights in terms of maintaining and developing their own political, religious, cultural and educational institutions along with the protection of their cultural and intellectual property, etc. However, it is to be noted that only the ILO Convention No. 169 is legally binding and all other instruments are merely a voluntary guideline to the state parties. Thus in the absence of a binding obligation, it is difficult to ensure the realization of these rights by the states in reality.

Conclusion

This module aims at giving a holistic understanding to students as to who are termed as indigenous people, their stand in society. Further this module dives into the Protection of Rights of Indigenous People, the various international instruments which are responsible for ensuring the protection of the protection of indigenous people’s human rights and other various provisions of the United Nations.

Reference

1. The UN Declaration on the Rights of Indigenous Peoples”, available at http://www.iwgia.org/human-rights/international-human-rights-instruments/undeclaration-on-the-rights-of-indigenous-peoples.
2. http://www.ilo.org/indigenous/Conventions/no169/lang–en/index.htm
3. The Rights of Indigenous Peoples”, available at http://www1.umn.edu/humanrts/edumat/studyguides/indigenous.html,
4. The International Convention on the Elimination of All Forms of Racial Discrimination, 1963.