Stavenhagen, Rodolfo --- "Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people - Digest" [2002] AUIndigLawRpr 53; (2002) 7(3) Australian Indigenous Law Reporter 81

Inquiries and Reports - United Nations

Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people

Mr Rodolfo Stavenhagen

Commission on Human Rights Resolution 2001/57

February 2002

On 24 April 2001, at its fifty-seventh session, the Commission on Human Rights adopted resolution 2001/57 in which it decided to appoint, for a period of three years, a Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people.

The resolution invests the Special Rapporteur with the following functions:

(a) to gather, request, receive and exchange information and communications from all relevant sources, including governments, Indigenous people themselves and their communities and organisations, on violations of their human rights and fundamental freedoms;

(b) to formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations of the human rights and fundamental freedoms of Indigenous people;

(c) to work in close relation with other special rapporteurs, special representatives, working groups and independent experts of the Commission on Human Rights and of the Sub-Commission on the Promotion and Protection of Human Rights.

This first report to the Commission provides a panorama of the main human rights issues besetting Indigenous people in the current world climate, gives consideration to appropriate ways of dealing with human rights concerns brought to his attention by ensuring that there is no ‘protection gap’ in processing human rights complaints, and sets out a framework and agenda for his activities in the future.

The report concludes that the major issues involving Indigenous rights relate to land, territory, the environment and natural resources; the administration of justice and legal conflicts; poverty, standards of living and sustainable development; language, culture and education; self government, autonomy, political participation and the right to self-determination. Across the board discrimination and marginalisation, particularly involving women and children, is a persistent problem and Indigenous peoples are especially vulnerable in situations of civil conflict and violence.

Editor’s note: The complete report can be found at <www.unhchr.ch>.

I. Background

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6. The formal activities of the United Nations concerning Indigenous issues began in 1970 with the recommendation by the Sub-Commission on Prevention of Discrimination and Protection of Minorities that a comprehensive study of the problem of discrimination against Indigenous populations be undertaken, followed by the appointment of a special rapporteur to carry out the study. This was followed by the establishment of the Working Group on Indigenous Populations (WGIP), which was to review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of Indigenous populations and give special attention to the evolution of standards concerning the rights of such populations. It held its first annual session in 1982.

7. The WGIP has been meeting annually since 1982 to consider developments in the situation of Indigenous populations and recommend standards for the protection and promotion of their human rights. Over the years the Working Group has provided an open forum for Indigenous participation and devoted its discussions to numerous topics concerning the human rights of Indigenous peoples, such as the land issue, the right to development, cultural heritage and intellectual property, health and education. Its annual reports to the Sub-Commission comprises a wealth of information on the human rights situation of Indigenous peoples and the accumulated communications and interventions of Indigenous associations and other non-governmental organisation (NGOs) provide a rich overview of current concerns. In obtaining information for his activities, the Special Rapporteur expects to draw extensively on this material. Special acknowledgement must be accorded to the work of Ms Erica-Irene Daes, the chairperson of the WGIP for almost 20 years, under whose guidance the WGIP produced the ‘Draft United Nations declaration on Indigenous rights’, which is currently being considered by the Commission.

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10. This introduction will briefly review the principal texts concerning Indigenous peoples that have been produced by the United Nations system and other multilateral institutions, mainly in order to sketch out various international human rights standards that specifically address the rights of Indigenous peoples, which are, in turn, the basis for the Special Rapporteur’s mandate.

A. Legally binding instruments concerning Indigenous peoples

1. ILO Convention No 169 (1989)

11. The International Labour Organisation showed an early interest in the situation of Indigenous peoples. In 1957 the ILO adopted Convention No 107 on Indigenous and tribal populations in independent countries. Some 30 years later, recognising that the international environment for Indigenous peoples had changed, the ILO proceeded to review Convention No 107 and in 1989 the General Conference adopted the Indigenous and Tribal Peoples Convention, better known as ‘Convention 169’, which entered into force in 1991. Convention 169 has now been ratified by 14 countries: Argentina, Bolivia, Colombia, Costa Rica, Denmark, Ecuador, Fiji, Guatemala, Honduras, Mexico, Norway, Netherlands, Paraguay and Peru.1

12. Convention 169 deals, among other aspects, with the right to possession of land and territories traditionally occupied by Indigenous peoples, the recognition of their cultural, social and religious values, custom-based law, the right to health services, and the right to benefit from equal conditions of employment. Complaint procedures are handled by the ILO Committee of Experts on the Application of Conventions and Recommendations and a tripartite committee, to which Indigenous individuals and organisations have indirect access through the ILO tripartite structure. Two interrelated themes have arisen repeatedly, both in the comments of the Committee of Experts and in the reports of tripartite committees established to examine representations brought against States under article 24 of the ILO Constitution. These are the duty of States to consult with Indigenous and tribal peoples when consideration is being given to legislative or administrative measures that affect them, and the same duty of consultation prior to the exploration or exploitation of natural resources on the lands they occupy or use. In its report submitted to the International Labour Conference in 1999, the ILO Committee of Experts observed that Convention No 169 was the most comprehensive instrument of international law for the protection in law and in practice of the right of Indigenous and tribal peoples to preserve their own laws and customs within the national societies in which they lived.2 The Convention remains, and is likely to remain for some time to come, the only international legal instrument currently in force and open for ratification that addresses specifically the rights of Indigenous and tribal peoples. Since its adoption in 1989, it has had considerable influence at the national, regional and international levels.

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B. Draft declarations

1. The Draft United Nations declaration

15. The ‘Draft United Nations declaration on the rights of Indigenous peoples’, prepared by the Working Group on Indigenous Populations with the active participation over the years of numerous Indigenous organisations from around the world, and currently under review by the Commission,3 is undoubtedly the most important human rights document for Indigenous peoples, and it should be adopted before the end of the International Decade. Though similar in many respects to Convention 169, there are certain differences. Considering that the rights of Indigenous peoples constitute an evolving area in the field of human rights in general, and an important step in the consolidation of the International Bill of Human Rights, then surely the draft declaration must build upon and go beyond the achievement represented by Convention 169 and certainly not lower the human rights standards that have already been set in this Convention.

16. It is important to note that while Convention 169 has received only a limited number of ratifications up to now, it is rapidly becoming a vibrant instrument for use by both States and Indigenous organisations. The complaints procedure in the ILO has provided access for Indigenous human rights concern, and is being increasingly used by the interested parties. Likewise, although still a draft, the draft declaration is being invoked more and more by Indigenous organisations in their struggles for human rights and their negotiations with States and other agents. Both the Convention and the draft declaration have become widely respected moral human rights standards, another reason why the declaration must not be allowed to disappoint the great expectations it has generated.

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E. Legislation and reforms at the national level

30. Many States have adopted legislation concerning Indigenous peoples; such is the case in North America, Australia and New Zealand. The Indians and Inuit of Canada, the Aborigines of Australia and the Maoris of New Zealand are considered ‘first nations’ or aboriginal peoples who have rights that are recognized in international law.4 These peoples, who lost their land to colonisers according to the now discredited doctrine of terra nullius, are reclaiming their territories based on the principle of aboriginal title. The concept has now developed in international law to protect rights of Indigenous peoples.[5]

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II. Major human rights issues confronting indigenous peoples

34. In 1953 the International Labour Office published a remarkable study on the living and working conditions of aboriginal populations in independent countries in which it found that: ‘As a rule the living standard of the aboriginal populations in independent countries is extremely low, and in the great majority of cases is considerably lower than that of the most needy layers of the non-Indigenous population.’[8] Three decades later, José Martínez Cobo, the Special Rapporteur of the Sub-Commission on the problem of discrimination against Indigenous populations, observed that in ‘many countries they were at the bottom of the socio- economic scale’.[9]

35. More recently, the World Bank carried out a comparative empirical study on Indigenous peoples and poverty in Latin America which finds that ‘poverty among Latin America’s Indigenous population is pervasive and severe [and] the living conditions of the Indigenous population are generally abysmal, especially when compared to those of the non-Indigenous population’.[10]

36. These findings are consistent with those of numerous other studies on the situation of Indigenous peoples the world over; they tend to show not only that the living conditions of the Indigenous people are generally deplorable, but also that this situation is closely related to the discrimination and other human rights abuses of which Indigenous peoples are the victims. Despite efforts to improve their conditions, Indigenous peoples are still handicapped by low standards of living and face numerous obstacles in their attempts to overcome their situation.

37. While some progress has been achieved over the last two decades, particularly as regards international and national legislation relating to the human rights of Indigenous peoples, ... their overall situation is still a matter of great concern. If we look at different indicators of achievement of social, economic and cultural rights, Indigenous people consistently score lower than the rest of the population.

38. Comparative research and a careful scrutiny of statements and communications presented by Indigenous and human rights organisations as well as reports produced by Governments, international organisations and independent sources allow us to group the major issues currently facing Indigenous peoples into a number of categories, namely, land rights, homelands and territories, education and culture, social organisation and customary legal systems, poverty, standards of living and sustainable development, and political representation, autonomy and self-determination.

A. Land rights

39. We shall refer in the first place to issues regarding land rights, which constitute a major problem for Indigenous communities and have been studied extensively over the years. From time immemorial Indigenous peoples have maintained a special relationship with the land, their source of livelihood and sustenance and the basis of their very existence as identifiable territorial communities. The right to own, occupy and use land is inherent in the self-conception of Indigenous peoples and generally it is in the local community, the tribe, the Indigenous nation or group that this right is vested. For economically productive purposes this land may be divided into plots and used individually or on a family basis, yet much of it is regularly restricted for community use only (forests, pastures, fisheries, etc), and the social and moral ownership belongs to the community.

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41. ... While legal protective measures have been enacted with greater frequency, the loss and dispossession of Indigenous lands has proceeded relentlessly, in some countries more rapidly than in others, and the consequences of this process have in general been quite deplorable on the human rights situation of Indigenous peoples.

42. Erica-Irene Daes notes in her study on Indigenous peoples and the land that ‘it is difficult to separate the concept of Indigenous peoples’ relationship with their lands, territories and resources from that of their cultural differences and values. The relationship with the land and all living things is at the core of Indigenous societies’.[12] In some countries, the concept of aboriginal title is crucial to the human rights of Indigenous peoples. This is the case in parts of the British Commonwealth, where exclusive use and occupancy of land from time immemorial gave rise to aboriginal title. Where this title is recognised, Indigenous peoples have at least some justiciable right that can be asserted in the domestic legal system.[13] Other countries have decided to demarcate Indigenous lands, but as Ms Daes points out, in terms of frequency and scope of complaints, the greatest single problem today for Indigenous peoples is the failure of States to demarcate Indigenous lands. Ms Daes concludes: ‘Indigenous societies in a number of countries are in a state of rapid deterioration and change due in large part to the denial of the rights of the Indigenous peoples to lands, territories and resources ... The failure of States to implement or enforce existing laws for the protection of Indigenous lands and resources is also a widespread problem.’[14]

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47. ... [E]ven when laws are in principle available to the Indigenous, these are not always implemented for their benefit. Numerous States report on recent legislative activity by which Indigenous rights are seemingly protected, but Indigenous organisations also report that their implementation leaves much to be desired. How to implement existing legislation effectively is as important for the rights of Indigenous peoples as the adoption of such legislation itself. Moreover, not all legislation governing the ownership, use and access to land and other natural resources is favourable to the protection of Indigenous rights. In some countries recent legislation undermines traditional communal or tribal holdings and opens the way to their dispossession by third parties or other private or corporate interests.

48. Erica-Irene Daes writes that ‘... aboriginal title is often subject to the illegitimate assumption of State power to extinguish such title, in contrast to the legal protection and rights that, in most countries, protect the land and property of non-Indigenous citizens, other individuals and corporations ... This single fact probably accounts for the overwhelming majority of human rights problems affecting Indigenous peoples ...’. Moreover, ‘The expropriation of Indigenous lands and resources for national development is a growing and severe problem. Development projects are frequently undertaken on Indigenous lands and territories without Indigenous consent or even consultation.’[18] Violations of Indigenous land rights within the framework of national development programmes are a major source of social tensions in a number of countries, and deserve closer scrutiny in the future.[19]

B. Homelands and territories

49. It is sometimes considered that the land issue is basically related to the availability of land for productive purposes (agriculture, forestry, herding, foraging) by individual members of Indigenous communities. While this is certainly of the greatest importance because the lack of access to productive land sentences rural Indigenous families to poverty and impels their members to emigrate in search of work, not always successfully, there are other factors involved as well.[20] Indigenous communities maintain historical and spiritual links with their homelands, geographical territories in which society and culture thrive and which therefore constitute the social space in which a culture can reproduce itself from generation to generation. Too often this necessary spiritual link between Indigenous communities and their homelands is misunderstood by non-Indigenous persons and is frequently ignored in existing land-related legislation.

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51. Some scholars argue that the recognition of Indigenous territorial rights is necessary for the full protection of the human rights and fundamental freedoms of Indigenous peoples, whereas others seem to fear that such recognition might undermine the unity and integrity of existing States. Nevertheless, in a number of States such rights have indeed been legislated and suggest that national unity is not threatened by these developments.

52. After a decades long struggle for legal redress concerning ancient land rights and aboriginal title, the Inuit people of northern Canada, who had linked land claims to territorial autonomy, negotiated a political agreement with the Government whereby they achieved the creation, in 1999, of the self-governing territory of Nunavut. Rather than weaken national unity, this arrangement has strengthened the federal structure of Canada and met the claims and aspirations of the Inuit people.[22]

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55. The land rights issue cannot be separated from the issue of access to, and use of natural resources by Indigenous communities. These rights are recognised in Convention 169 (article 15) and in articles 28 and 30 of the draft declaration. The draft American declaration on the rights of Indigenous peoples has similar wording.[25]

56. Indigenous organisations have insistently demanded that attention be given to these rights, because access to the natural resources available in their habitat is essential for their economic and social development. Too frequently, such resources are being extracted and/or developed by other interests (oil, mining, logging, fisheries, etc) with little or no benefits for the Indigenous communities that occupy the land. Whereas the World Bank has developed operational directives concerning its own activities in relation to these issues (see Introduction) and some national legislation specifically protects the interests of Indigenous communities in this respect, in numerous instances the rights and needs of Indigenous peoples are disregarded, making this one of the major human rights problems faced by them in recent decades.

57. The Special Rapporteur considers, on the basis of the evidence and in agreement with Ms. Daes, that land, territory and resources together constitute an essential human rights issue for the survival of Indigenous peoples, and proposes to pursue this issue further by looking more closely at the lessons that can be learned from a study of particular cases in different parts of the world.

C. Education and culture

58. The extensive literature produced over the last few decades on the situation of Indigenous people around the world shows that they maintain, generally speaking, a cultural distinctiveness which distinguishes them clearly from other groups in society and from those sectors that are usually identified by the concept of ‘national culture’. There are many features associated with this cultural distinctiveness, and in this report the Special Rapporteur wishes to underline only a few of those that have a direct bearing on the enjoyment of human rights and fundamental freedoms of Indigenous people.

1. Language

59. Mention must be made in the first place of the importance of language in providing an essential cultural distinctiveness to any people. Language, as specialists have shown, is not only a medium of communication, but also a crucial element in the structuring of thought processes and in providing meaning to the natural and social environment of any person. A language community is also an epistemic community, that is, it links people through their participation in a common medium and in shared understandings. Indigenous language communities provide their members with the full range of cultural meanings attached to the use of a shared idiom. Most Indigenous languages are very ancient and while they have undergone changes — just like any other language — they are transmitted from generation to generation and thereby help preserve the continuity of a language community and its culture.

60. Language rights are an essential element of the cultural rights that all persons enjoy under international human rights standards. The right to one’s own language pertains not only to individuals but also to communities, nations and peoples. If a language community as such is denied the collective and public use of its language (for example, in schools, the media, the courts, the administration) then any individual’s right to this language is severely curtailed. Therefore, language rights are nowadays proclaimed as human rights, which entail respect, protection and promotion by others and especially by State authorities. Numerous States have now adopted legislation concerning the protection of regional, minority or Indigenous languages. For example, in New Zealand, the 1989 Education Act has been amended to ensure funding for Maori pre-schools, primary schools, secondary schools and universities. The impetus for this came from Maori mothers insisting that the Maori reclaim the education of their children from birth through to adulthood.

61. From a historical perspective, however, State policies have not always recognised or protected the languages spoken by Indigenous peoples or linguistic minorities. On the contrary, the intention of official linguistic, educational and cultural policies has often been the assimilation of such groups into the national mainstream, thus leading to language and culture loss. It has only been in recent years that these processes have been seen as being in violation of the human rights of the members of such linguistic communities, and they have sometimes been considered as a form of ethnocide.[26]

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2. Education

64. The use of the mother tongue in education and public communications is an important issue in the definition of the human rights of Indigenous peoples. In contrast to the formerly widely extended and dominant idea of formal schooling as an instrument of assimilation and acculturation, through which Indigenous children learn to speak the national language and replace their own mother tongue, current thinking on the subject tends more towards the opposite direction. Bilingual and intercultural education has become educational policy for Indigenous communities in many parts of the world. Specialists in education agree that early schooling in both the native mother tongue and the official language of the State is of great benefit to Indigenous children, who may become proficient in the vehicular (ie official) language of the wider society without losing their vernacular idiom.

65. Nevertheless, despite the best of intentions, the teaching of native tongues in schools has its difficulties. In the first place, many Indigenous languages lack their own alphabets and do not have a written tradition. Secondly, the formal teaching of the vernacular tongue and of the vehicular idiom as a second language requires special training and pedagogical skills which Indigenous teachers often lack. In Mexico, for example, where official bilingual education in Indigenous areas has a history of many decades, the output level of students in bilingual schools is still below the national average. Furthermore, the preparation of textbooks and teaching materials in Indigenous languages usually lags behind in areas where the national or official language is taught exclusively. In many countries school administrations (either public or private) are not set up to handle Indigenous bilingual education effectively. To that extent, the Indigenous right to education in their own languages is not being adequately implemented and requires serious attention in the future.

66. Even more problematic is the idea of multicultural or intercultural education, because this involves not only local schools but also the regional and national school systems and the educational philosophy of any country where there are Indigenous peoples. The notion of multicultural and intercultural education leads to a complete revision of educational contents and methods in countries where it is applied. It basically means that the cultural diversity of the country is reflected in the curriculum and the preservation and promotion of cultural diversity become an objective compatible with democratic governance and the enjoyment of human rights by all. In some cases this approach will require the revision of traditional ideas held by majority or dominant cultural groups about national culture and identity. Indigenous peoples’ organisations often need to remind the world that their own cultural specificities are also contributions to a universal culture and not mere relics of a disappearing past. The rights of Indigenous peoples to culture and education (the whole gamut of cultural rights, in fact) include the right to the enjoyment and protection of their own cultures in a wider, multicultural world.

3. Multiculturalism

67. The preservation of Indigenous cultures (including tangible and intangible elements, arts and artefacts, traditions, knowledge systems, intellectual property rights, ecosystem management, spirituality and so on) is an essential component of a comprehensive Indigenous human rights package. This may seem self-evident to anybody who takes the cultural rights as set out in the International Bill of Human Rights for granted. But in fact the preservation of Indigenous cultures is not a natural process at all. The reverse is more likely, because, as has been well documented in the specialised literature on the topic, public policies have frequently been designed to eliminate and transform Indigenous cultures because their existence has often been considered as detrimental to the idea of national integration and development. Many countries adopted specific policies to ‘assimilate’ Indigenous peoples into the wider ‘national’ culture within the framework of cultural and social modernisation. While such ideas no longer command the support they used to have, and whereas more and more States adopt positions favourable to multiculturalism, there are still numerous cases in which the cultures of Indigenous peoples are under strong outside pressures to change, when they are not actually on the verge of extinction.

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70. ... A question frequently asked of Indigenous peoples is whether their cultural identities can survive in a de-territorialised environment, that is, in dispersed settlements and urban centres where Indigenous migrants live interspersed with non-Indigenous populations. The answer to this question depends on the particular circumstances and is contingent on the specific definition of Indigenous identity in each case ... It may be argued that to the extent that cultural rights are universal, they are not subject to any kind of territorial restriction. The right of any individual or group of individuals to preserve, practise and develop their own culture is not dependent upon territoriality but rather related to self-identification. The Special Rapporteur intends in the future to address the problems of Indigenous social and cultural rights in a non-local environment.

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4. Social organisation, local government, customary law

77. Indigenous organisations seek to preserve or regain the right to local (and sometimes regional) self-government; they consider this right as part of the fundamental freedoms which international law accords to all peoples. Through negotiations and treaties, constitutional reform or special legislation, Indigenous peoples have been able in numerous instances to establish agreements with States regarding this right to self-government. In other cases, however, this has not been possible, and national- or regional-level government units still take it upon themselves to administer the affairs of Indigenous communities. Indigenous affairs ministries, departments or bureaux often have specific mandates to that effect and local Indigenous governments need to deal with these institutions rather than with those of the national political or administrative system in general. Indigenous organisations may consider this to be a form of discrimination, whereas Governments argue that such arrangements are designed for the protection of Indigenous people themselves, in keeping with their best interests (as defined by the State).

78. Recognising these issues, the Draft United Nations declaration on the rights of Indigenous peoples states in article 33: ‘Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognised human rights standards.’

79. How are the various arrangements concerning local self-government among Indigenous peoples related to the exercise of their civil and political rights? How has recent legislation affected the protection and enjoyment of these rights? When Indigenous self-government differs from constitutional municipal governing structures, how does this affect the human rights situation of Indigenous communities? On this topic, as on others mentioned previously, the literature is fragmentary at best and the evidence is too limited to support any far-reaching conclusions. The Special Rapporteur proposes to approach this issue in a comparative framework from the standpoint of human rights and democratic governance, and expects to report back to the Commission in the future.

5. Poverty, standards of living, sustainable development

80. [I]ndigenous people are very often found among the poorest strata in society, their standards of living are considered to be below average in many respects. Studies have shown high levels of infant mortality, lower than average nutritional levels, lack of public services, difficulty of access to social welfare institutions, lower than average delivery of the services provided by such institutions, inadequate housing and shelter, and generally low indicators associated with the idea of human development.

81. Many States have recognised these problems and promote special policies and measures designed to improve the standards of living of Indigenous people. In other areas public policies are not oriented in this direction and the needs of Indigenous populations have been neglected. Numerous statements made by Indigenous representatives at the WGIP over the years, and other information gathered by independent research bodies, confirm this tendency. For instance, the Committee on Indigenous Health of the Indigenous Peoples’ Caucus expressed its concern at the nineteenth session of the WGIP that the gap between the health of Indigenous peoples and the rest of society is widening, despite all efforts by national Governments and international agencies. It is also worried about the effects on Indigenous peoples of the global health fund recently set up by the Group of Eight.29

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82. What has been done and what can be done? For many decades national Governments, multilateral funding agencies, non-governmental organisations and private businesses have designed and implemented development projects at the local and regional levels in order to promote the economic and social development of Indigenous communities. Whilst Convention 169 states in article 7, paragraph 1: ‘The peoples concerned 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 they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development’, unfortunately, for multiple reasons, this does not always occur.

83. Recent experience has shown that economic growth must go hand in hand with social concerns if the results are to be effective and make a difference in the lives of individuals and communities. A new approach seems to be taking hold in international discourse: human rights-centred sustainable development, meaning that unless development can be shown to improve the livelihoods of people within the framework of the respect for human rights, it will not produce the desired results. This approach may be of particular importance for Indigenous peoples whose human rights have frequently been neglected, when not actually impaired, by traditional economic development approaches.

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6. Political representation, autonomy, self-determination

85. Indigenous self-organisation has made considerable progress over the years. From the local level to the regional, national and international levels Indigenous peoples’ associations have become social and political actors in their own right, as witnessed by their continuing participation in the yearly sessions of the WGIP. They speak with many voices, but on the fundamental issues of their human rights, their objectives and their aspirations they are usually in remarkable agreement. In some countries they are now recognised as legitimate partners and interlocutors of Governments and other social sectors on the national scene. In other countries the going has been more difficult, their organisations may not be officially recognised and their human right to free association may not be completely respected. To the extent that the rights of Indigenous peoples themselves are sometimes neglected and ignored within existing power structures, their organisations and other human rights advocacy associations that take up their cause may also become victims of abuses and be denied adequate protection under the law. Numerous communications to this effect have been addressed over the years to, amongst others, OHCHR, the ILO Committee of Experts and the Inter-American Commission of Human Rights.

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87. One of the more controversial topics surrounding the human rights and fundamental freedoms of Indigenous peoples concerns the much-debated right of peoples to self-determination. In their statements to international forums Indigenous representatives demand the recognition of their right to self-determination as peoples. Equally insistently, some States argue that such a right should not extend to the Indigenous. The concept of self-determination is closely linked to the use of the term ‘peoples’. There does not appear to be a clear and unequivocal definition of this term in any of the multiple international legal instruments that have been adopted over the last half century nor, for that matter, in national legislation. Without a clear definition that may command a broad consensus, it is not obvious what the debate is really all about. In political science and legal literature the term is usually linked to all the citizens of an existing State, whereas in sociological texts the notion of a ‘people’ refers to certain commonalities, shared identities and identifications.

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89. The Special Rapporteur recognises that the use of the concept of self-determination has undergone changes over time, and as far as Indigenous peoples are concerned, it has generated much controversy and has polarised positions in forums such as the World Conference on Human Rights in 1993 and the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in 2001, leading also to unfortunate delays in the adoption of the Draft United Nations declaration by the Commission on Human Rights.

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91. At the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance there were difficult discussions over this concept between Indigenous representatives and government delegations, and the wording of the final declaration did not satisfy everyone ... The Draft United Nations declaration on the rights of Indigenous peoples adopted by the WGIP establishes in article 3 that ‘Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’.[32] The Special Rapporteur believes that it would be useful to review current debates on this topic and suggest constructive ways to solve a conceptual issue that is of primordial importance to both States and Indigenous peoples.

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IV. Specific concerns relating to the human rights and fundamental freedoms of Indigenous people

101. At this early stage in his mandate, the Special Rapporteur cannot hope to provide a full picture of the human rights situation of Indigenous peoples and communities around the world. But drawing on existing information, basically the communications and statements that have been addressed recently to the WGIP, CERD and other bodies, as well as communications and complaints that have come to the attention of the Special Rapporteur directly since he took up his mandate, it is possible to identify some of the principal current concerns of Indigenous peoples, communities and organisations.

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109. ... Land dispossession, discrimination and violence against Indigenous individuals and communities, relocation and insufficient delivery of social services (health and education, among others) are recurring themes in communications and statements issued by Indigenous representatives in international forums. Among situations denounced by Indigenous representatives as well as concerned NGOs we may mention mining and logging activities affecting Indigenous livelihoods, flooding of Indigenous ancestral territories due to multipurpose projects, environmental destruction because of the building of oil pipelines, and violence against Indigenous leaders who fight for the rights of their communities. Discrimination against Indigenous peoples is often reflected in insufficient funds or investments for economic growth, lack of resources for social and cultural services, and national priorities which lie elsewhere than in the area of Indigenous development. Discrimination against Indigenous and tribal peoples, including women, in the area of labour, including forced labour in the form of debt bondage, and inhuman working conditions affecting a large number of ‘scheduled tribe’ workers has been noted by the ILO Committee of Experts.

110. Communications and complaints about violations of the human rights of Indigenous people are plentiful and they occur under the most diverse circumstances. Over the years, the representatives of Indigenous peoples present at the sessions of the WGIP have provided extensive documentation in this respect. Alleged violations are also presented to other international bodies, such as the ILO Committee of Experts (regarding Conventions Nos 107 and 169), CERD, the Human Rights Committee and CEDAW, as well as regional bodies such as the Inter-American Commission on Human Rights. Besides such formal communications, numerous non-governmental organisations and human rights advocacy groups gather information, monitor conditions, verify and document specific complaints and claims and disseminate the results through worldwide networks of concerned citizens. When such complaints are verified by independent sources and backed up by reputable institutions (such as recognised human rights organisations or academic research centres), then it is probable that their substance deserves serious consideration by the Special Rapporteur and the Commission on Human Rights.

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V. Future activities of the Special Rapporteur

113. Taking into consideration the major human rights issues set out above, the Special Rapporteur, within the mandate which the Commission of Human Rights has set out, will identify particular topics that deserve special attention, after consultations with Indigenous organisations, Governments, experts of the WGIP and other specialists. Such topics might include:

(a) The impact of development projects on the human rights and fundamental freedoms of Indigenous communities;

(b) Evaluation of the implementation of recent legislation at the national level related to the rights of Indigenous peoples;

(c) Human rights issues for Indigenous people in the realm of administration of justice, including, where relevant, the relationship between positive and customary (non-written) legal systems;

(d) Cultural rights of Indigenous peoples as reflected in bilingual and intercultural education, as well as the preservation and development of their own cultural heritage;

(e) Human rights issues — particularly economic and social rights — regarding Indigenous children, especially girls, in different settings, such as migrations, trafficking of women and girls, violent conflicts, the informal economy, etc;

(f) Participation of Indigenous peoples in decision-making processes, autonomic arrangements, governance and policy-making, with special regard to the full implementation of civil and political rights;

(g) Old and new forms of discrimination against Indigenous people, within a gender perspective, in the light of the Declaration and Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, as well as measures and remedies undertaken to combat discrimination and implement the human rights and fundamental freedoms of Indigenous peoples.

114. An outline for each topical study will be prepared after a preliminary examination of the subject based on existing documentation. The study will then be developed using a variety of inputs and sources, such as published material and reports prepared by Governments, public institutions, non-governmental organisations, academic institutions and investigative journalists. Inputs prepared by Indigenous peoples’ associations and institutions will be greatly valued. In particular, it would be extremely helpful if each individual topic could be addressed by means of the organisation of an international high level seminar, the conclusions of which would provide a crucial input for the studies and the Special Rapporteur’s future reports.

115. The Special Rapporteur intends to prepare and circulate focused questionnaires and schedules on these special topics, in the hope of obtaining up to date reliable information from a variety of sources, mainly Governments and Indigenous organisations. Considering the generous offers made to him during his initial conversations, the Special Rapporteur hopes to be able to count on the cooperation of numerous institutions and individuals from many countries in the preparation of these topical studies.

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[1]Convention No 107 is still adhered to by 20 States.

[2]Report III (1A), International Labour Conference, 87th Session, Geneva, 1999.

[3]In its resolution 1995/32, the Commission established an open-ended intersessional working group with the sole purpose of elaborating a draft declaration, considering the draft contained in the annex to Sub-Commission resolution 1994/45, entitled ‘Draft United Nations declaration on the rights of Indigenous peoples’.

[4]Under the Treaty of Waitangi Act of 1975, Maori claims are dealt with by the Waitangi Tribunal in New Zealand.

[5]See S James Anaya, Indigenous Peoples in International Law, Oxford University Press, 1996.

[8]International Labour Office, Indigenous Peoples. Living and Working Conditions of Aboriginal Populations in Independent Countries, Geneva, International Labour Office, 1953, p 89.

[9]José R Martínez Cobo, Study of the problem of discrimination against Indigenous populations (E/CN.4/Sub.4/1986/7) and Add.1-4. Addendum 4, containing the conclusions, proposals and recommendations of the Special Rapporteur, was issued as a United Nations Publication, Sales No E.86.XIV.3.

[10]George Psacharopoulos and Harry Anthony Patrinos (eds) Indigenous People and Poverty in Latin America. An Empirical Analysis, Washington, DC, The World Bank, 1994, pp. 206-207.

[11]Erica-Irene A Daes, Indigenous peoples and their relationship to land (E/CN.4/Sub.2/2001/21), para 13.

[12]Ibid, para 38.

[13]Ibid, paras 123 and 130 (E/CN.4/2002/97) page 35.

[18]Daes, op cit, para 38.

[19]See the report of the Expert Seminar on Practical Experience Regarding Indigenous Land Rights and Claims held in Whitehorse, Canada, in 1996 (E/CN.4/Sub.2/AC.4/1996/6).

[20]This section deals with rural Indigenous people only. Urban Indigenous people have different problems, which will be dealt with in another context.

[21]The Nunavut web site is www.nunavut.com.

[25]Article 18, paragraph 4 reads: ‘Indigenous peoples have the right to an effective legal framework for the protection of their rights with respect to the natural resources on their lands, including the ability to use, manage, and conserve such resources; and with respect to traditional uses of their lands, interests in lands, and resources, such as subsistence.’

[26]Ethnocide is a process of cultural change and destruction as a result of specific policies that undermine a cultural community’s ability for self-preservation.

[29]Statement of the Committee on Indigenous Health (COIH) to the WGIP, July 2001.

[32]Regarding the legal status of the Draft United Nations declaration, Professor Paul Chartrand considers that it ‘can be viewed as a restatement of the law, and not new law as such. For example, articles 1 to 3 clearly reiterate the existing international covenants, and clarify their applicability without discrimination to Indigenous peoples’ (personal communication, 28 November 2001).