Indigenous Peoples' Rights

The Centre for World Indigenous Studies estimated that the number of indigenous peoples worldwide in 1999 was between 300 and 500 million. This figure includes more than 7,000 indigenous societies or cultures, living in more than seventy countries, constituting approximately 5 percent of the global population. In the absence of reliable statistics, however, these figures are only approximate.

who are indigenous peoples?

Indigenous peoples are generally referred to in the plural, because they include many different communities. The use of the plural peoples indicates the diversity of people within the concept as a whole.

There is currently no agreed-upon definition of who is indigenous. Indigenous peoples themselves claim the right to define who they are. They argue that self-identification as indigenous is one of the basic rights. Nevertheless, the term indigenous peoples is generally used to describe a nondominant group in a particular territory, with a more or less acknowledged claim to be aboriginal—or the "original" inhabitants.

Although the Aboriginal peoples of Australia, the Mäori of New Zealand, and the Maya of Guatemala were clearly there first, in some places the issue is more ambiguous. For example, in Africa many people consider all groups to be indigenous, and in Asia, where successive waves of people moved here and there, displacing other populations, similar problems with the term first also apply. It is safer to say, therefore, that indigenous peoples are those who arrived in a territory before single nation-states were formed.

Indigenous peoples have distinct social, political, and cultural identities, and languages, traditions, legal, and political institutions that are distinct from those of the national society. They have a special relationship with the land and natural resources, which is often fundamental to their cultural identity and therefore their survival as distinct peoples. Hundreds of thousands of indigenous peoples continue to be pastoralists , hunters and gatherers, and peasant farmers or shifting cultivators, whether full- or part-time. In most cases, the subsistence economy remains the bedrock of how indigenous peoples make their living.

official definitions

There is no single official definition of indigenous peoples. However, there are three main working definitions within the United Nations (UN). The first definition of indigenous and tribal peoples was provided by the International Labor Organization's (ILO) Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989), which came into force in 1991. In Article 1, the convention describes indigenous peoples as those who descended from the populations that inhabited the country at the time of colonization and who enjoy some or all of their own social, economic, cultural, or political institutions.

The other two widely used definitions were suggested by UN Rapporteurs Jose R. Martinez Cobo and Erica-Irene Daes. In his 1986 Report for the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Cobo stated that indigenous peoples are those who have a historical continuity with precolonial societies and who consider themselves distinct from the majority community. Daes, chairperson of the UN Working Group on Indigenous Populations, likewise has suggested that indigenous peoples are those who are descendants of groups that were in the country at the time of colonial invasion and who, have through their isolation from the majority community, preserved their ancestor's customs and traditions, and who are placed under a state structure that is fundamentally alien to theirs. Each of these definitions emphasizes self-identification as one of the main variables in any definition of indigenous peoples.

violations of indigenous peoples' rights

Wherever they may live, in an industrialized or a lesser developed country, in a rural or urban area, indigenous peoples are often the most vulnerable sector of society; they tend to be marginalized —socially, economically, and politically—and suffer from oppression, discrimination, and poverty. When the Europeans first set foot in their prospective colonies they paid little notice of the local people and their rights. In many cases they pursued policies of exploitation (e.g., the Mäori in New Zealand), assimilation (e.g., the Aborigines and Torres Strait Islanders in Australia) or sometimes extermination (e.g., the Native American Indians in the United States). Native rights to land and resources were rarely recognized and huge swathes of land were settled by colonists in the mistaken belief that they were uninhabited.

In the early twenty-first century, indigenous peoples are facing a new form of putative exploitation in globalization , with its imposition of the culture and system of the global capitalist market economy . A key element in this ongoing colonization process is land.

Different mechanisms and tools have been devised to take the land away from indigenous peoples; all seem inherently discriminatory. They include projects such as the building of roads, construction of dams, laying of oil pipelines, mining and processing projects, deforestation and forestation programs, and the creation of natural parks in lands traditionally occupied by indigenous peoples; sometimes, these projects have required the actual eviction of indigenous groups from their traditional homelands.

In most countries where indigenous peoples are in the minority, they are among the poorest and most disadvantaged segment of the national population. As land is their main source of income and livelihood, this continuing erosion of their land rights is a major cause of the ongoing impoverishment of indigenous peoples.

Another area in which indigenous peoples often face discrimination is education. Indigenous peoples often face discrimination in access to educational facilities, resulting in poor educational achievement, and most national educational programs and curricula do not take into account the special characteristics and needs of indigenous peoples. The end result is that many indigenous children can feel marginalized.

Indigenous peoples who are still engaged in hunting and gathering are popularly viewed as backward and unprogressive and seen as impediments to economic development. This can result in official intimidation. Indigenous peoples are often arrested and jailed for continuing to hunt and gather on ancestral lands that have been made into reservations or declared protected areas. Indigenous peoples thus often face prejudice and discrimination when applying for jobs or trying to gain access to higher positions.

As a result of institutionalized state discrimination against indigenous peoples, they can also suffer from racial prejudice. In many parts of the world, indigenous peoples remain politically excluded, and their right to self-determination is routinely ignored or dismissed. Across the globe, indigenous peoples are significantly underrepresented in decision-making processes. Indigenous peoples are often the victims of official violence. They are routinely seen as scapegoats for crimes committed and are often overrepresented in criminal prosecutions.

The right to political, economic, social, and cultural self-determination and legal recognition of the rights to own, manage, and control their ancestral lands and resources are key demands of indigenous peoples and are at the heart of what it means to be indigenous in the twenty-first century.

international mechanisms to protect indigenous peoples' rights

There have been significant advances in international thinking and action on indigenous issues and rights during the waning years of the twentieth and into the twenty-first century. The international community now recognizes that indigenous peoples have particular collective as well as individual rights that afford them a specified level and quality of protection under international human rights law.

ilo

The ILO Convention on Indigenous and Tribal Populations, (No. 107, 1957) was the first international document designed to protect indigenous peoples against discrimination and to ensure their continued existence. The convention is in force for twenty countries. In 1989, the ILO adopted the Convention on Indigenous and Tribal Peoples (No. 169), based on the premise that indigenous peoples have the right to survive as separate peoples with their own cultures and traditions. It also highlights the need for special measures to protect these peoples not only from discrimination but also cultural extinction. Fourteen countries have signed the convention, and ratification was under active consideration in a number of other countries in 2005. ILO Convention No. 107 and Convention No. 169 are the only binding instruments exclusively focused on indigenous peoples' rights as of early 2005.

the un

A variety of UN committees and agencies have directed their attention to the condition of the world's indigenous peoples:

• The UN Sub-Commission on Prevention and Discrimination and Protection of Minorities study, completed in 1984, concluded that the continuous discrimination against indigenous peoples threatened their very existence.
• The Vienna Declaration and Program of Action adopted at the World Conference on Human Rights in 1993 recommended that states take positive steps to ensure respect for the human rights and fundamental freedoms of indigenous peoples.
• The Durban Declaration and Plan of Action, arising from the UN World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (2001), recognized that indigenous peoples have been victims of discrimination for centuries and affirmed that they should not suffer any discrimination, particularly on the basis of their indigenous origin and identity.

• In 2001, the UN Commission on Human Rights appointed a Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people to gather and receive information and communications from governments and indigenous peoples on violations of their human rights and fundamental freedoms.
• In 2002, at the UN World Summit on Sustainable Development, the international community affirmed that indigenous people play a vital role in sustainable development.

The UN, its partners, and indigenous peoples have developed a program that sets standards in regards to indigenous peoples and their rights and reviews developments regularly. The Working Group on Indigenous Populations, established in 1982, was the first arena in the UN system in which indigenous peoples could state their views. One of the principle outcomes in terms of standard setting is the draft declaration on the rights of indigenous peoples under discussion in the Working Group of the Commission on Human Rights. As of early 2005 this draft declaration was working its way up through the UN system to the General Assembly.

The UN observed the International Decade of the World's Indigenous Peoples from 1995 through 2004. The objective of the special observation was for governments to strengthen their efforts for international cooperation for the solution of problems faced by indigenous peoples in areas such as human rights, the environment, development, and health. The Decade helped to focus efforts in the UN system on two primary goals: the creation of a Permanent Forum on Indigenous Issues and the drafting of the declaration on the rights of indigenous peoples.

The Permanent Forum on Indigenous Issues—the first permanent mechanism within the UN system to address the problems facing indigenous peoples—was established in April 2000. Consisting of eight governmental experts and eight indigenous representatives, the Permanent Forum is the most significant and concrete step taken to date to address indigenous peoples' issues. Many indigenous peoples have high hopes that the forum will make a real difference to improving their lives.

a definition of indigenous

In his 1986 Report for the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Martinez Cobo writes:

Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. (Cobo 1986)

The tenth session of the working group on the draft declaration occurred in September 2004. The challenge facing indigenous peoples and governments is to agree on a final text, enabling its adoption. However, there continue to be serious disagreements over the wording of the documents, especially over issues of internal self-determination and autonomy. For indigenous peoples the right to self-determination is the cornerstone of the draft declaration. Self-determination is a prerequisite for the exercise of their political, social, cultural, and spiritual rights, as well as their practical survival.

The draft declaration, if and when adopted, will not be legally binding on states. It will nevertheless have great moral force and will provide minimum standards to guide states in their dealings with indigenous peoples.

european union

The European Council passed a resolution in 1998 on indigenous peoples and has since mainstreamed indigenous peoples' issues in both its development and human rights strategies. The working document from the European Commission, prepared at the time of the council resolution, recognizes the economic, social, and political marginalization of indigenous peoples; their unique contribution to the sustainable use of resources; and the importance of their participation and inclusion in decision-making processes. It also acknowledges the importance of self-determination to indigenous peoples. The European Parliament has been getting increasingly involved in the issue of indigenous peoples, passing resolutions in 1994, calling for effective protection for indigenous peoples, and in 1995, calling for support for the Decade.

african union

The 34th Ordinary Session of the African Commission on Human and People's Rights (2003) adopted the Report of the African Commission's Working Group on Indigenous Populations/Communities. The report contains an analysis of criteria for identifying indigenous peoples in Africa, an analysis of their human rights situation seen in the light of the provisions of the African Charter on Human and Peoples' Rights (1986) and an analysis of the African charter/jurisprudence and its potential for promoting and protecting their human rights. This was a major development as there remains considerable confusion in many African states in identifying and protecting indigenous peoples' rights.

the caribbean community and common market

In 1997, the Caribbean Community and Common Market (with fifteen member states from Latin America and the Caribbean) recognized in the Charter of Civil Society the contribution of indigenous peoples to the development process. It protects their historical rights and respects their culture (Article 11). The charter has the status of a regional, intergovernmental human rights declaration.

the concept of indigenous

Erica-Irene Daes, Chairperson of the UN Working Group on Indigenous Populations (WGIP), while concluding in 1995 that "the concept of 'indigenous' is not capable of a precise definition that can be applied in the same manner to all regions of the world," has nevertheless suggested this variation, designating certain peoples as indigenous:

1. Because they are descendants of groups which were in the territory of the country at the time when other groups of different cultures or ethnic origins arrived there;
2. because of their isolation from other segments of the country's population they have preserved almost intact the customs and traditions of their ancestors which are similar to those characterised as indigenous; and
3. because they are, even if only formally, placed under a State structure which incorporates national, social and cultural characteristics alien to theirs. (Daes 1995)

organization of american states

The Organization of American States (OAS; thirty-five independent countries of the Americas as of 2004) has turned its attention to the rights of its indigenous peoples. In 1997, the Inter-American Commission on Human Rights approved the OAS Proposed Declaration on the Rights of Indigenous Peoples in the Americas. As of 2004, the Declaration was under discussion by governments and indigenous representatives. The OAS proposed declaration is one of the most important exercises underway to address the human rights of indigenous peoples. In some countries of the Americas, the OAS is a substantial and far-reaching step forward relative to existing rights found in domestic law. However, there are fears that the OAS could do harm by undermining the high human rights standards that are being proposed for indigenous peoples at the UN.

international jurisprudence

Intergovernmental human rights bodies overseeing universal and regional human rights instruments, such as the UN Committee on the Elimination of Racial Discrimination, have frequently commented on government reports concerning the violation of the rights of indigenous peoples. In August 1997, the committee adopted General Recommendation XXIII, which states its concern at the continuing discrimination against indigenous peoples, calls for the restitution of their lands and territories, and, where this is not possible, for just, fair, and prompt compensation including comparable lands. Similarly, the Human Rights Committee, which is responsible for monitoring the implementation of the International Covenant of Civil and Political Rights (1966), is increasingly commenting on the inconsistency of state policy relating to indigenous peoples with international human rights law.

See also: International Covenant of Civil and Political Rights; United Nations Commission on Human Rights.

bibliography

Anaya, S. James. Indigenous Peoples in International Law. New York: Oxford University Press, 2004.

Blaser, Mario. In the Way of Development: Indigenous Peoples, Life Projects and Globalisation. London: Zed Books, 2004.

Cobo, Jose R. Martinez. "Study of the Problem of Discrimination against Indigenous Populations." UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. UN Doc. E/CN.4/Sub.2/1986/7 (1986).

Colchester, Marcus. Conservation and Mobile Indigenous People: Displacement, Forced Settlement and Sustainable Development. Oxford, UK: Berghahn Books, 2001.

Hughes, Lotte. The No-Nonsense Guide to Indigenous Peoples. London: Verso, 2003.

International Labour Organisation. ILO Convention on Indigenous and Tribal Peoples, 1989 (No. 169): A Manual. Geneva: International Labour Organisation, 2005. <http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169>.

International Work Group on Indigenous Affairs. The Indigenous World 2004, ed. Diana Vinding. Copenhagen, Denmark: International Work Group on Indigenous Affairs, 2004.

Office of the United Nations High Commissioner for Human Rights. Draft United Nations Declaration on the Rights of Indigenous Peoples. Geneva: Office of the United Nations High Commissioner for Human Rights, 1994. <http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.SUB.2.RES.1994.45.En?OpenDocument>.

Thornberry, Patrick. Indigenous Peoples and Human Rights. Manchester, UK Manchester University Press, 2002.

Helena Whall