|
Economic
and Social Council
Distr. GENERAL
E/CN.4/Sub.2/1999/20
22 June 1999 Original: ENGLISH
COMMISSION
ON HUMAN RIGHTS
Sub•Commission on Prevention of Discrimination and Protection of Minorities
Fifty•first session
Item
7 of the provisional agenda
Final report by Miguel Alfonso Martínez, Special Rapporteur
CONTENTS
Paragraphs Page
Introduction
I.
SOME KEY POINTS OF DEPARTURE
II. SUMMARY OF
FINDINGS
A.
Treaties/agreements between indigenous peoples
and States
B.
Other constructive
arrangements
C. Situations lacking specific bilateral legal instruments to
govern relations between
indigenous peoples and States
III. A LOOK AT THE
PRESENT: ORIGIN,
DEVELOPMENT AND
|
||
CONSEQUENCES
OF THE DOMESTICATION PROCESS
|
||
IV. LOOKING AHEAD: CONCLUSIONS AND RECOMMENDATIONS . .
|
Introduction
1.
In volume V (Conclusions, proposals and recommendations) 1
of his
monumental Study of
the Problem of Discrimination against Indigenous Populations, Mr. Martínez
Cobo stressed the paramount importance for indigenous peoples and nations in
various countries and regions of the world of the treaties concluded with
present nation-States or with the countries acting as colonial administering
Powers at the time in question.
2. He concluded that a thorough and careful study should be
made of various areas covered by the provisions of such treaties and
agreements, the official force of such provisions at present, the observance,
or lack of observance, of such provisions, and the consequences all that might
entail for indigenous peoples and nations parties to such treaties or agreements.
3. He further noted that in preparing such a study, account
must necessarily be taken of the points of view of all parties involved, a task
requiring the examination of a large volume
of documentation. For obvious reasons,
that was an undertaking that could not be carried out within the framework of
his own study.
4. He therefore recommended that a thorough study devoted
exclusively to that subject should be undertaken in the light of existing
principles and norms in the field and the opinions and data submitted by all
interested parties, primarily the Governments and indigenous nations and
peoples that had signed and ratified treaties
or agreements. He believed that only a thorough study
could help determine with the necessary accuracy the present status of
international agreements involving indigenous peoples. 2
5.
Taking up an initiative of its Working Group on Indigenous
Populations,
3 at
its thirty-ninth session, the Sub-Commission on Prevention
of Discrimination and Protection of Minorities
acted upon Mr. Martínez Cobo's recommendation by adopting resolution 1987/17 of
2 September 1987, entitled “Study on treaties concluded between indigenous
peoples and States”. In taking such
action, the Sub-Commission was consistent with
its
resolution 1984/35 A of 30 August 1984, in which it
had decided to consider Mr. Martínez Cobo's conclusions, proposals and
recommendations as an appropriate source for its future work on the question of
discrimination against indigenous populations and for the work of its Working
Group on Indigenous Populations.
6. In its resolution 1987/17, the Sub-Commission requested
Mr. Miguel Alfonso Martínez to prepare, on the basis of the opinions and data in
Mr. Martínez Cobo's report and the views expressed
on the issue in the Working Group and in the Sub-Commission, a document
analysing the general outline of such a study and the juridical,
bibliographical and other information sources on which such a study should be
based, and to submit the document to the
Sub-Commission for consideration at
its fortieth session.
7. The Sub•Commission also recommended that the
Commission on Human Rights recommend, in turn, that the Economic and Social
Council authorize the
Sub-Commission to appoint Mr.
Alfonso Martínez as Special Rapporteur with
the mandate of preparing such a study, and to request
the Special Rapporteur to present a preliminary report to the Sub-Commission at
its forty-first session (1989). The recommendations contained in resolution 1987/17 were submitted to the Commission on Human Rights for consideration
at its forty-fourth session (1988).
8. At its forty-fourth session, the Commission adopted
resolution 1988/56, in which a number of guidelines on the matter were established. These would eventually become the terms
of reference of the Special Rapporteur's mandate for the present study.
9. It should be noted that in adopting
resolution 1988/56, the Commission broadened to a considerable extent the scope
of the study originally envisaged by the Sub-Commission in its resolution
1987/17, by recommending that the Economic and Social Council authorize the
appointment of Mr. Alfonso Martínez as Special Rapporteur of the Sub•Commission
with the mandate of preparing
“an outline on
the possible purposes, scope and sources of
a study to be conducted on the potential utility of treaties, agreements and other constructive arrangements between
indigenous populations and Governments for the purpose of ensuring the
promotion and protection of the human rights and fundamental freedoms of
indigenous populations” (Emphasis added).
10. However, in resolution 1988/56 the Commission only
authorized the Special Rapporteur to prepare and submit to the Working Group an
outline of a possible study, not to undertake the study proper, as recommended by the Sub-Commission. In fact, it withheld its authorization, at least until 1989, in order to decide on the appropriateness of
commissioning such a study by the Special Rapporteur.
11. Commission resolution 1988/56 was endorsed on 27 May 1988
by the Economic and Social Council in its decision 1988/134.
12.
The Special Rapporteur submitted the requested outline to the Working Group and the Sub-Commission later in 1988. Both bodies endorsed that document. In
addition, in its resolution 1988/20 of 1 September 1988, the Sub-Commission requested the Commission
and the Economic and Social Council to finally authorize the Special Rapporteur
to undertake the study referred to in Commission resolution 1988/56.
13. At its forty-fifth session, the Commission adopted,
without either a debate or a vote, resolution 1989/41 of 6 March 1989, in which
it endorsed all the recommendations submitted on the matter by the
Sub-Commission in its resolution 1988/20. They were thus submitted to the Economic and Social Council
for approval at its 1989 spring session.
14. Finally, the Council, in its resolution 1989/77 of 24 May
1989, confirmed the appointment of Mr. Alfonso Martínez as Special Rapporteur
and authorized him to carry out the study.
15.
Since that date, the Special Rapporteur has submitted to
the Working Group and the Sub-Commission a preliminary report,
and three progress reports. 6
16. At its forty-ninth session, the
Sub-Commission, in its decision 1997/110 of 22 August 1997, urged the Special
Rapporteur to submit his final report in due time • preferably before the end
of 1997 • so as to allow it to be discussed by the Working Group at its
sixteenth session and by the Sub-Commission at its fiftieth session, in 1998. The present final report is submitted to the consideration of both bodies,
pursuant to the above•mentioned decision of the Sub-Commission.
17. As to the contents of this final report, it should be
recalled, first, that the Special Rapporteur suggested from the start of his
mandate a
three-part
structure for the study as a whole:
(i) In the first part, the origins of the practice of
concluding treaties, agreements and other constructive arrangements between
indigenous peoples and States, that is, the role of treaties in the history of
European expansion overseas, were to be examined.
(ii) The second part was to be devoted to the contemporary
significance of such instruments, including questions regarding the succession
of States, national recognition of treaties and the views of indigenous peoples
on these issues.
(iii) The third part would address the potential value of all
those instruments as the basis for governing the future relationships between
indigenous peoples and States. Both
the form and substance of such instruments were to be considered in the
final stage of the study, as well as possible mechanisms to be
institutionalized in the future to secure their implementation. 7
18. This final part, obviously, had to be undertaken in the
light of the actual situations in which indigenous peoples find themselves
coexisting today with other, non-indigenous segments of society in many
States. It is the precarious
nature of their existence almost everywhere that is today
provoking • as it did when Martínez Cobo's study
was commissioned and completed • growing concern in the international community.
19. The Special Rapporteur's research and analysis largely
follow his initial plan as far as the first two parts of the study are concerned.
20. At this final stage of the Special Rapporteur's work on
the study, particular attention will be given to the potential value of all
possible ways and means of achieving a new relationship between the indigenous and
non-indigenous sectors in multi•national societies
through adequate forward•looking, innovative mechanisms that would facilitate
conflict resolution when needed.
21. The fact that the Special Rapporteur has been working on
this study for nine years and that the present, final report, should be able to
stand on its own with respect to publication by the United Nations has made
certain inclusions necessary. The Special Rapporteur has therefore briefly recapitulated here the most important provisional
conclusions advanced in previous progress reports, as well as the initial (or
modified) reasoning behind them. He has also referred to key cases or
general situations reviewed fully in those reports. Without
this background it would be difficult to grasp fully the
sense and possible merit of the conclusions and recommendations offered here.
22. Consequently, chapter I deals with four main topics: the process of selection
(or elimination) of cases relevant to this study; treaty and
treaty-making concepts; the importance of fully
understanding the evolution of the indigenous/non-indigenous relationship and
its present status and defining and differentiating between the categories
“indigenous peoples” and “minorities”. In chapter II, the Special Rapporteur offers his
views on the three juridical situations
selected for their pertinence to the goals of this study, focusing on the
individual cases/situations selected for review in consideration of their juridical/institutional development. Chapter III describes the overall process of domestication of
indigenous issues in its various manifestations during different stages and
links it to the present situation of indigenous societies. Finally, in chapter IV, the Special Rapporteur
brings all the elements included in previous chapters together, to offer his
conclusions and recommendations for what he considers might be a constructive
future approach.
23. Lastly, a final remark about the contents of this report. The Special Rapporteur is fully aware that he - and only he - is
ultimately responsible for the content of the conclusions and recommendations
of the present study. However, he is also aware that all human endeavour may
contain flaws and shortcomings, and thus can benefit from constructive criticism.
24. In this context, it cannot be overemphasized that in many
aspects and cases reviewed, the final result of these long years of work, as
reflected in the present document, is based on the research (including field
work), the personal and professional experience, and, in particular, the views
on the available sources that have been developed by two persons only: the Special Rapporteur
himself and his consultant, Dr. Isabelle Schulte-Tenckhoff - to whom he once
again expresses his gratitude for her invaluable collaboration.
25. Hence, the Special Rapporteur will highly welcome all
critical opinions - not only from his colleagues but also, in particular, from
those indigenous peoples and Governments which did not respond to his
questionnaire - that may be proffered during the debate that will be held on
the subject of this final report at the forthcoming
1999 sessions of both the Working Group and the Sub-Commission. These contributions will be
duly taken into account for potential utilization as
additional elements of judgement to be incorporated in this report before it
becomes an official United Nations publication.
26. In this final report, the Special Rapporteur wishes to
express gratitude to all the Governments that responded to the questionnaire
sent them in 1991 and 1992; in particular those of Australia and Canada for the
thoroughness with which they did so and the valuable documentation provided
either at their own initiative or upon request. He
also thanks the Governments of Canada, Chile, Fiji, Guatemala, New
Zealand, Spain and the United States of America, for granting facilities for
field research or for participation in activities relating to indigenous
questions in their respective countries.
27. The careful attention and efficiency with which the New
Zealand authorities prepared and coordinated the Special Rapporteur's programme
of activities during his official working visit to that country in May 1997,
and the fact that some of its highest authorities (for example, the Ministers
of Foreign Affairs and Justice) were gracious enough to find time to receive
him personally and discuss issues affecting the Maaori people, merit his
special recognition.
28. This study could not have been concluded without the
cooperation of many indigenous peoples, organizations and authorities, who have
offered the Special Rapporteur, not only their invaluable contributions (oral
and written testimony, documentation and much needed logistics of the most
varied kind), but also constant encouragement in his work.
29. Even at the risk of possible regrettable omissions, it is
fitting to mention here the support received from the following indigenous
organizations and institutional bodies: American
Indian Law Alliance, Four Nations of Hobbema, Fund of the Four Directions, Grand Council of the
Haudenosaunee Confederacy, Consejo de Todas las
Tierras de la Nación Mapuche, Grand Council of the Crees (of Québec), Fundación Rigoberta Menchú, International
Indian Treaty Council, Assembly of First Nations (Canada), Western Shoshone
National Council (United States), Maaori Legal Services, Teton Sioux Treaty
Council, Ka'laui Hawaii, International
Organization of Indigenous Resource Development, OXFAM and the Information and
Documentation Centre on Indigenous
Peoples
(DOCIP) (Geneva).
30. The Special Rapporteur wishes to express his gratitude
also to the authorities (elders, lonkos, Grand
Chiefs and Chiefs, headmen, councillors and advisers) of diverse indigenous
nations/peoples or their organizations, among them Rigoberta Menchú Tum (Maya
Nation), the late Oren Lyons (Onondaga Nation), Matthew Coon Come and Ted Moses
(Crees [of Québec]),
Tony Blackfeather (Teton Sioux/Lakota Nation), J.
Wilton Littlechild (Four Nations of Hobbema/Canada), Domingo Cayuquo, Manuel
Antilao, Jorge Pichinual, Juana Santander and Aucan Huilcamán (Mapuche Nation),
Ovide Mercredi (Assembly of First Nations/Canada), Cherrilene Steinhauer and
Carl Queen (Saddle Lake First Nation/Canada), Wallace Fox (Onion Lake First Nation/Canada),
Daniel Sansfrere, Michael Nadli, Felix Lockhart,
Pat Martel, Jonas Sangri, Rene Lamothe, Gerald Antoine and Francois Paulette
(Dene Nation/Canada), Sharon Venne (Lubicon Cree Nation-Joseph Bighead First
Nation-Treaty Six Nations/Canada), Juan León (Maya Nation), the late Ingrid Washinawatok
(Fund of the Four Directions), Ken Deer (Mohawk
Nation), Lázaro Pari (Aymará Nation), Bill Means, Antonio González, Jimbo
Simmons and Andrea Carmen (IITC), Mililani Trask (Hawaii), Al Lameman (Beaver
Lake Tribal Administration),
Kent Lebsock (American Indian Law Alliance), R.
Condorí (CISA), Pauline Tiangora, Naniko, Aroha Pareake Meade, Moana Jackson,
Dr. Margaret Mutu, Sir Tipene O'Regan,
Sir R.T. Mahuta, Moana Erickson and Shane Solomon (Aotearoa/New Zealand), and
Leif Dunfield (Saami Nation). All
of them gave the Special Rapporteur most valuable information and insights on
their respective peoples/nations and organizations.
31. The Special Rapporteur cannot leave unmentioned his
gratitude to other indigenous and non-indigenous individuals - all with
recognized authority in diverse aspects of the indigenous problematique and active, in general, in United Nations circles - who have lent their
knowledge, practical experience, and/or incisive, constructive criticism to the
Special Rapporteur's work.
32. Gudmundur Alfredsson (both in his past functions in the
Centre for Human Rights and in his capacity as a scholar specializing in this
question), Augusto Willemsen Díaz, Chief Justice E. Durie (of the Waitangi
Tribunal), Mario Ibarra, Jacqueline Duroure, the late Andrew Gray, Paul Coe,
Renate Dominick, Robert Epstein,
Florencia Roulet, Sir Paul Reeves,
Anthony Simpson, Alberto Saldamando, and Professors
Vine Deloria, Héctor Díaz Polanco, Michael Jackson, Gaston Lyon, Glenn Morris,
C.M. Eya Nchama,
Douglas Sanders, Mason Durie, Jim Anaya, José
Bengoa (his colleague in the Sub-Commission) and the late Howard Berman merit
special thanks for their worthy academic contributions. None of them, of course, bear any responsibility
whatsoever for the possible flaws in the various progress reports or in this
final report of the study.
33. Last but not least, the Special Rapporteur expresses
heartfelt gratitude for the specialized assistance, patience and logistical
cooperation provided by all those who have served on the minuscule unit/task
force to which the Centre for Human Rights or the Office of the High
Commissioner for Human Rights has assigned responsibility for indigenous affairs. The diligence and the extreme professionalism with which they so effectively
fulfilled their functions in terms of this study (sometimes under extremely trying
conditions) have been simply exemplary. In
this regard, their head, Mr. Julian Burger and his highly efficient
colleague, Ms. Miriam Zapata have, over long years, earned the total respect of
the Special Rapporteur.
I. SOME KEY POINTS OF DEPARTURE
34.
Given the vast geographical, temporal and juridical scope
of the
study,
8 the
Special Rapporteur decided from the start to confine detailed analysis to a limited, representative number of
case studies ordered according to five juridical situations: (i) treaties concluded between
States and indigenous peoples; (ii) agreements made between
States or other entities and indigenous peoples; (iii) other constructive
arrangements arrived at with the participation of the indigenous peoples
concerned; (iv) treaties concluded between States containing provisions
affecting indigenous peoples as third parties; and (v) situations involving
indigenous peoples who are not parties to, or the subject of any of the
above-mentioned instruments. 9
35. It must be recalled that from the
geographical viewpoint, the Special Rapporteur has viewed his mandate as
universal, dealing with “any part of the world in which the historical or
contemporary existence of treaties, agreements and other constructive
arrangements is confirmed, or where they may still come into being in the
future through a process of negotiation and cooperation”. 10
36. Consequently, an extensive array of cases from all regions
of the world was examined relating to all five juridical situations listed
above, including cases in the United States and Canada (Haudenosaunee, Mikmaq,
the so-called Five Civilized Tribes, Shoshone, Lakota, the indigenous
signatories of
Treaty No. Six, the James Bay Cree [of Québec], the
indigenous nations of British Columbia and California, the Lubicon Cree), the
Pacific (Maaori, Hawaii, French Polynesia), Latin America (Kuna Yala,
Mapuche, Yanomami, Maya), Aborigines and Islanders of Australia, the Greenland
Home Rule, and some African and Asian cases (Burma/Myanmar, the role of
European charter companies in South Asia and West Africa, the San of Botswana,
the Ainu of Japan and the indigenous peoples of Siberia).
37. It is worth recalling in this connection that some choices
were made by the Special Rapporteur concerning the guidelines adopted for the
research as a whole. 11
Those
guidelines have been duly taken into account throughout his work.
38. In the course of his work and in light of the numerous
cases/situations reviewed, the Special Rapporteur was led to reconsider the
relevance for the final report of the five juridical categories listed at the
beginning of this chapter
39. Two of those juridical categories, namely, agreements,
insofar as these may differ fundamentally from treaties, and treaties between non-indigenous powers
affecting indigenous peoples as third parties, will have limited impact on the
conclusions and recommendations to be formulated in the present final report.
40. Regarding, first of all, the question of
agreements, the Special Rapporteur has already stressed the need for a
casuistic approach, since “the decision of the parties to a legal instrument to
designate it as an 'agreement' does not necessarily mean that its legal nature
differs in any way
from those formally denominated as 'treaties'”. 12 This
reasoning is consistent with the legal tradition codified into
contemporary international law by the Vienna Convention on the Law of Treaties. 13
41. The Special Rapporteur therefore selected
certain factors to be taken into account in determining which of the
instruments analysed should be viewed as a “treaty”, and which was to be
considered an “agreement”. These factors are: who the parties to the instrument are, the
circumstances surrounding its conclusion,
and its subject matter. 14
42. The factors in question were applied in the analysis of
two particular instruments, namely, the Panglong Agreement of 12 February 1947
(Burma/Myanmar),
later forgone by the State party; 15 and the agreement of 22 August 1788 between Captain Taylor on behalf
of the British Crown and the Chiefs of Sierra Leone, which does not constitute
an instrument of international law relevant to the study. 16
43. Some elements relating to other, present-day
cases or situations labelled as “agreements” - particularly in the Canadian
context - will be reviewed in chapter III of this report.
44. Secondly, regarding the relevance, for this study, of
bilateral and multilateral treaties binding non-indigenous powers but affecting
indigenous peoples as third parties, it should be stressed that lack of time
and resources have prevented the Special Rapporteur from ascertaining in situ the practical import of those
instruments for indigenous peoples and from further examining the existing
documentation on the instruments.
45.
Nonetheless, at least one instrument already considered in
the first
progress
report 17 clearly
continues to be relevant, namely the so-called
Lapp Codicil to the 1751 border treaty between
Sweden/Finland and Norway/Denmark. This Codicil has never been abrogated and
continues to be the subject of legal interpretation regarding Saami rights
within the context of bilateral (Sweden/Norway) negotiations.
46. In this connection, it is worth underscoring
the role of the Saami parliament in both Norway and Sweden – but especially in
Norway where it seems to have a stronger impact than in Sweden - and their
potential contribution to the interpretation of the Codicil.
47. In addition, regarding specifically the 1989 ILO
Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent
Countries, it remains to be seen to what extent indigenous peoples have any
direct access to (or possible effective input into) the processes leading to
the ratification of this Convention by the States in which they live. It is worth noting that to date only
a very limited number of those States have actually ratified this instrument.
48. Although support for the Convention has been
expressed by a number of indigenous organizations (for example, the Inuit
Circumpolar Conference, the National Indian Youth Council and the Saami
Council), that support is far from being unanimous. The opposition to it by a number of indigenous organizations in the Canadian context is proof of this. In Canada, for instance, not all indigenous peoples – nor all sectors of the
legal establishment - support ratification of the Convention, since its provisions
appear to lag behind current national standards. In
other countries, where existing legislation regarding indigenous peoples – or the indigenous labour
force, for that
matter - is less advanced,
indigenous peoples may take a different stand. Yet
again, a case-by-case approach is called for.
49. It follows that the issue of treaties affecting indigenous
peoples as third parties may continue to be relevant insofar as they remain in
force and insofar as indigenous peoples already participate - or may in the
future - in the implementation of their provisions. Among the 10 instruments previously
considered for analysis, 18 apart
from the Lapp Codicil, several others would warrant further scrutiny, among them the 1794 Jay
Treaty and the 1848 Treaty of Guadalupe-Hidalgo, both of apparent special
significance for the indigenous nations along the borders of the United States
with Canada and Mexico respectively.
50. Consequently, the conclusions and
recommendations to be offered in the present report will mainly refer to three
of the five juridical situations originally identified: (i) where there is proof of international treaties/agreements between indigenous
peoples and States, (ii) where there are no specific bilateral legal
instruments to govern relations between indigenous peoples and States; and
(iii) situations relating to the question of “other constructive arrangements”.
51. As to the role of these constructive arrangements, the
Special Rapporteur notes that activities currently being undertaken at the
national level - for example, in Mexico, Canada and Guatemala under different social and political conditions • clearly illustrate some
of the fundamental problems he has been led to raise in the course of his
mandate, notably the issue of collective rights for indigenous peoples in
today's pluri-ethnic societies and the need in that context for mutually agreed
conflict-resolution mechanisms. 19
52. Also in connection with the three situations outlined
above, it must be stressed that treaties themselves and treaty-making (in the
broadest sense of this term) are matters that, in the view of the Special
Rapporteur, require further conceptual elaboration.
53. The Special Rapporteur is of the opinion
that one should avoid making oneself a prisoner of existing terminology. This does not preclude in any way, however, the conclusions to be drawn
from a non-Eurocentric historiography of treaties/agreements between indigenous
peoples and States and the corresponding status of indigenous peoples in
international law – a historiography to which he devoted a crucial section of
his second progress
report. 20 There are, basically, two sides to the issue.
54. Firstly, according to the future-oriented
aspects of this study, that is, the lessons to be drawn from the study as to
the potential for negotiating treaties and other consensual legal instruments
and practical mechanisms in order to ensure better relations in the future
between indigenous peoples and States, a narrow definition of “a treaty” and
“treaty-making” would hinder or pre-empt any innovative thinking in the field. Yet it is precisely
innovative thinking that is needed to solve the predicament in which
many indigenous peoples find themselves at present.
55. Secondly, such a narrow definition of
treaties and treaty-making would impede (or even preclude) any proper account
of indigenous views on these issues, simply because of the widely•held
rationale that indigenous peoples are not “States” in the current sense of the
term in international law, regardless of their generally recognized status as
sovereign entities in the era of the Law of Nations.
56. It is worth reiterating that it would be
equally erroneous to assume that indigenous peoples have no proper
understanding of the nature, formalities and implications of treaties and treaty-making. Some authorities on the issue, however, attribute to them a
total lack of understanding of the principles of such instruments and their
“codes”. Nonetheless, not only bibliographical sources but also direct
testimony gathered by the Special Rapporteur from indigenous sources provide
ample proof to counter this assumption.
57. It has been brought to his attention from
the start of his endeavours that the concept and practice of entering into
international agreements – that is, compacts between sovereign entities,
whether nations, “tribes” or whatever they choose to call themselves - was
widespread among indigenous peoples in the Americas, Aotearoa/New Zealand and
elsewhere before the arrival of the European colonizer and continues to be so.
58. In addition, during field research, many indigenous
sources (oceans apart) consistently advised the Special Rapporteur that, on a
number of occasions in the course of negotiations, the
non-indigenous parties had failed to adequately inform their indigenous
counterparts (that is, the ancestors of those indigenous sources) of the cause
and object of the compact, frequently drafted only in the European languages
and then orally translated. The linguistic
difficulties this entailed for the indigenous parties often prevented them from
gaining a full understanding of the true nature and extent of the obligations
that, according to the non-indigenous version of those texts (or construction
of its provisions), they had assumed. This situation was
obviously not conducive to free, educated consent by the indigenous parties to
whatever compact emerged from those negotiations. It follows, then, that those instruments would be extremely
vulnerable in any court of law worthy of its
name.
59. The Special Rapporteur is of the opinion that these
accounts - particularly in cases involving the cession of territories by
indigenous parties - reflect the actual sequence of events, considering, in
particular, the inherent inalienable condition of their lands, and the
historical situations faced by many indigenous
nations.
60. Dealing also with the fundamental principles
governing treaty-making and its “codes”, Charles Alexandrowicz has
demonstrated, using the example of early African treaties with European Powers
(or with their successors for that matter), that, while specific concepts
regarding power, kingship and other matters of political organization may have
differed between the two parties, they nevertheless rarely failed to find
common ground as far as those principles were
concerned.
61. Among these commonly shared fundamental principles of
treaty-making, one finds: the need for mandated representatives to engage in negotiation, basic agreement on the subject matter
of treaties, and concepts relating to the need for ratification and the binding
power of any type of formally negotiated compact.
62. However, it should be noted that an
exhaustive study of the indigenous viewpoint on a number of important aspects
of treaties and treaty-making, still remains to be undertaken. Although it falls squarely under the Special Rapporteur's mandate, sufficient resources
have not been available for completion of such
a task. Nonetheless - in accordance with
Martínez Cobo's recommendations - he has endeavoured
wherever possible to take proper account of indigenous knowledge and
institutional set•up regarding the history of treaties and treaty-making, as
well as the lessons indigenous peoples themselves tend to draw from this
knowledge with a view to redefining their relationship with the States in which
they now live.
63. In more theoretical terms, one might argue that the
principle of reciprocity represents a cross-cultural feature of treaty-making. This is also
borne out by the understanding which various indigenous parties to treaties
perpetuate regarding the basic nature of the treaty relationship.
64. A case in point - but not the only one - is the indigenous
understanding of some of the numbered treaties in present-day Canada, which has become
easily accessible
thanks to recently published research. 21 In conjunction
with
the work of the Royal Commission on Aboriginal Peoples in that country, a large number of accounts of indigenous treaty
interpretations have been submitted. Unfortunately, the Special Rapporteur has not had the opportunity to study these accounts in depth. Nonetheless, there is no doubt as to their importance both for the handling of indigenous
situations in Canada and his own conclusions in this final report.
65. One final remark on the overall issue of the treaty
problematique: it has not been possible for the
Special Rapporteur to assess thoroughly all the possible connections between
this problematique and the general question
of “the human rights of indigenous individuals”. Obviously, this is a very different notion from that of “the rights of
indigenous peoples”, which is much broader in scope and, in fact, includes
those individual rights.
66. Regarding the content of this final report
and in accordance with the terms of reference of the Special Rapporteur’s
mandate, the process of “domestication” of all issues relating to indigenous
peoples is of singular importance and obviously requires further analysis and
elaboration in this final stage of his work. An
extensive review of the origin of this process is necessary to gain a full understanding of crucial
juridical and socio-economic elements of the present•day situation of these
peoples, as manifested in former European settler colonies (and the States
which succeeded them) when the relationship originated, and also as it now
exists in relevant, today multi-national, States in Latin America, Africa,
Asia, the Pacific and northern Europe. Consequently, this question will be dealt
with in extenso in the conclusions offered in chapter III of this final report.
67. On the other hand, the process of the
domestication of indigenous issues must be set off against that of
independence/decolonization in the Latin American, African, Asian and Pacific
countries (which differ greatly), since it raises a further and very pertinent
issue, namely that of the relevance of the concept of “indigenousness” with
reference to any possible case of “State•oppressed peoples”, including
“minorities”, in the particular context of present•day African, Asian and
Pacific States.
68. In the latter countries, the era of
decolonization brought about a radical change in the concept of the qualifier “indigenous”. This was a result of a new political context whose most visible
symbol was the emergence of a large number of new States under contemporary
international law. Thus, from a conceptual viewpoint, the Special Rapporteur
considers it necessary to re-establish a clear-cut distinction between
indigenous peoples and national or ethnic minorities. This differentiation of course is not to be construed as implying lack of recognition of those
minorities' collective rights as distinct societies.
69. In this connection, it should be noted that
in 1991, at the beginning of his work, and in establishing guidelines for his
research as a whole, the Special Rapporteur decided to distinguish strictly
between “minorities” and
“indigenous peoples”.
22 In addition, it should be borne in mind, that in
accordance with the criteria adopted by him in 1995
with respect to his future plan of work, in the final phase “the emphasis of
the study should be on cases and
situations in which the 'indigenous peoples'
category is already established beyond
any doubt from a historical and modern•day point of view". 23
70. Years of research and reflection at various
levels of the United Nations system, especially by the Commission on Human
Rights and its Sub-Commission, have not yielded a generally accepted definition
of the term “minority”, nor of the qualifiers often associated with it, such as
“ethnic” or “national”.
71. The significance, on the other hand, of the
“working definition” of “indigenous peoples” formulated by Special Rapporteur
José Martínez Cobo in the last part of his study, lies in the fact that his
Conclusions have been recognized as “an acceptable basis of work” by the
Commission and its subsidiary bodies.
72. Nevertheless • as has been argued earlier in
the progress reports of this study - in Martínez Cobo’s attempt to extend his
“working definition” to all cases brought to his attention in the course of his
mandate, he tended to lump together situations that this Special Rapporteur
believes should be differentiated because of their intrinsic dissimilarities.
73. These dissimilarities hinge on a number of historical
factors that call for a clear distinction to be made between the phenomenon of
the territorial expansion by indigenous nations into adjacent areas and that of
the organized colonization, by European powers, of peoples inhabiting, since
time immemorial, territories on other continents.
74. Of particular concern to the Special
Rapporteur, vis•à•vis this study, was the fact that, in the context of current
United Nations practice and in accordance with existing international legal
instruments and standards, the securing of effective international protection of
minority rights remains very much confined to the realm of their individual
rights. In addition, this overall issue is mainly dealt with as a matter
pertaining to the internal jurisdiction of States, thus precluding any
alternative approach.
75. Yet, indigenous peoples justly attach considerable
importance to the recognition, promotion and securing of their collective
rights, that is, their rights as social groups. Equally,
they seek the possible establishment of international mechanisms
for the resolution of conflicts with State authorities, in particular, in
connection with the rights recognized in, or acquired by means, of instruments
with acknowledged international status, such as treaties.
76. Consequently, the Special Rapporteur has
already expressed the view that indigenous peoples, although they may
constitute numerical minorities in a number of the countries in which they now
live, are not “minorities” in accordance with United Nations usage and for the
purposes of possible
practical action
on the part of the Organization. 24 By the same token,
ethnic
and/or national minorities are not to be considered
“indigenous peoples” in the United Nations context.
77. It is worth pointing out that United Nations
policy on this point is now well established; especially since 1994 with the
establishment of the Working Group on Minorities under the Sub-Commission, by
decision of the Economic and Social Council upon the recommendation of both the
Commission and the Sub•Commission itself. 25
78. In the course of his conceptual reflections, the Special
Rapporteur was also led to underscore that, in the African and Asian contexts,
the problematique of indigenous communities
is rarely coextensive with that of the
treaty relationship, 26
although it may well be that,
among others, the case of
the Maasai is an exception warranting further
scrutiny, given their role in the negotiations leading to Kenya's independence.
79. It remains nevertheless true that
communities which could be regarded as indigenous in the context of Martínez
Cobo’s study, given their lifestyles and habitat - but excluding other factors,
such as their “indigenousness” condition today as compared with the
“indigenousness” of other communities coexisting with them in the post-colonial
era in the territory of practically all States on the African and Asian
continents - tended not to be parties to treaties or agreements either with the
colonial powers or with the States that succeeded those powers after
decolonization and independence. 27
80. It must be underlined, however, that the Special
Rapporteur has not been in a position to assess all possible overlaps and
contradictions of every treaty-related issue and the overall indigenous problematique in the African and Asian contexts.
81. Moreover in this connection, it can be
validly argued that the legacy of “protected” tribal areas in Africa and Asia
(especially in regions formerly included in the British colonial empire, for
example in India and southern Africa) has raised a number of specific problems
- particularly when reflected in the work of some international organizations,
such as the International Labour Organization and the Organisation of American
States - that has contributed to the confusion on the issue of the well-established,
clear-cut minorities/indigenous dichotomy.
82. Despite important lacunae in this respect, the Special
Rapporteur has been led to draw some tentative ground rules from these
particular issues, in particular regarding the status and situation of
indigenous peoples not yet parties to any formal and consensual bilateral
juridical instrument.
83. It should be recalled that many representatives of what
they describe as State-oppressed groups/minorities/peoples in Africa and Asia
have brought their case before the Working Group on Indigenous Populations for
lack of other venues for the submission of their grievances. This situation is now being
remedied with the establishment of the Working Group on Minorities.
84. It follows that, while their particular
situation may qualify as a matter for general consideration within the
framework of United Nations activities on the overall issues of the prevention
of discrimination and the protection of minorities, its relevance is either
tangential, extremely limited, or non-existent in a contemporary context
regarding the issue of treaties/agreements and constructive arrangements
between indigenous peoples and States - including their role in view of future
agreements between indigenous and non-indigenous parties - and particularly for
the present study in the light of the terms of reference of the Special
Rapporteur’s mandate under Commission on Human Rights resolution 1988/56.
85. In this final phase of the study, the emphasis, as
explained earlier, is therefore to be only on situations where, in the view of
the Special Rapporteur, the category of indigenous peoples has been established
beyond doubt.
86. Concerning this important question, the
Special Reporter considers it his duty to point out that • as was to be
expected • the contents of this last part (paras. 66•85 above) of chapter I of
his final report aroused critical reactions on the part of a number of
participants in the sixteenth session of the Working Group, in 1998, when the
present report was circulated in its unedited version (and in English only) as
a working document. Both in their interventions during the debate on the
subject and in conversations outside the meeting room, as well as in
communications they sent to him later, various participants from Asia and
Africa made known to the Special Rapporteur their complete disagreement with
the content of the above•mentioned paragraphs.
87. As he had undertaken to do at the end of the debate that
took place at the sixteenth session of the Working Group (see E/CN.4/Sub.2/1998/16,
para. 102), the Special Rapporteur gave serious
consideration to those comments, particularly those contained in the written
communications. Leaving
aside certain unacceptable (because
unsubstantiated) invective contained in some of these communications • such as
attributing to him a prevalence of “colonial and possibly even racists values”
in his outlook and his methodological approach towards the question • the
Special Rapporteur came to the conclusion that the arguments put forward
therein were not sufficient to make him alter the basic views set out in the
above•mentioned paragraphs of this report; all of which he reiterates on the
present occasion.
88. Such reiteration is basically justified,
given that in none of the communications he received was a serious
counter•argument put forward to refute the obvious fact that in post•colonial
Africa and Asia autochthonous groups/minorities/ethnic groups/peoples who seek
to exercise rights presumed to be or actually infringed by the existing
autochthonous authorities in the States in which they live cannot, in the view
of the Special Rapporteur, claim for themselves, unilaterally and exclusively,
the “indigenous” status in the United Nations
context.
89. As mentioned previously, and given the
exclusive character that the term “indigenous” has in this context, other
groups, minorities, ethnic groups or peoples who live alongside them on the
territory of a present•day multi•national or multi•ethnic African or Asian
State • whose (sometimes aberrant) frontiers are the result of a colonial
situation, perhaps legally defunct but which continues to cast its shadow on
the present • would thus be excluded from this category of “indigenous”. These States • whose existence as such is, in the majority of cases, very
recent • have not only the right but also the duty to preserve their fragile territorial integrity. The risk to such States of breaking up (or “balkanization”) which
such unilateral claims to “indigenousness” imply naturally cannot be taken
lightly. It should be said that, with perhaps less defensible historical
circumstances, many developed States, with centuries of existence as
nation•States behind them, demonstrate the same reticence with respect to such
a possibility, however remote it might be in
fact.
90. To sum up: the
Special Rapporteur firmly maintains his view
that the situations described above, the scenario of
which is African or Asian States, should be analysed in other forums of the
United Nations than those that are currently concerned with the problems of
indigenous peoples; in particular in the Working Group on Minorities of the
Sub•Commission on Prevention of Discrimination and Protection of Minorities.
91. It needs to be reiterated also that the
Special Rapporteur is not defending the absurd position of denying the
existence on the African and Asian continents • as was affirmed in some of
those statements and communications • of populations who are ethnic groups,
minorities, peoples or autochthonous groups; on the contrary, all of them are. Therefore, except in certain cases mentioned in the present report (or a few
others which could be considered in greater depth on the basis of further information),
the term “indigenous” • exclusive by definition • is particularly inappropriate
in the context of the Afro•Asian problematique and
within the framework of
United
Nations activities in this field.
92. Lastly with respect to several other
criticisms of opinions put forward in the present report on this issue, the
Special Rapporteur would point out that the great value of, and the respect he
has for, the views advanced on the subject by Mr. Martínez Cobo and by the
distinguished Chairperson•Rapporteur of the Working Group, Ms. Erika Irene Daes
in their respective studies do not mean that he is necessarily obliged to share
those views.
II. SUMMARY OF FINDINGS
93. In the three progress reports submitted until now, the
Special Rapporteur has endeavoured to address not only the various aspects of
the question of treaties between indigenous peoples and States as identified by
Mr. Martínez Cobo, 28 but
also those same aspects in connection with
agreements and other constructive arrangements as mandated by
the Commission and the Economic and Social Council.
94. Those issues are, among others, the areas covered by such
instruments, their present-day legal standing, their implementation or lack
thereof, and the consequences this might entail for indigenous peoples.
95. These aspects were addressed on the basis of manifold
sources and documentation, including the responses received to the two questionnaires
circulated
twice at the beginning of the mandate; 29 the results of field and archival research conducted either by the Special
Rapporteur or his consultant; and extensive documentation and other materials
submitted by interested parties, whether States, indigenous peoples or
organizations, scholars and other individuals
concerned.
96. The sheer volume and diversity of these documents have led
the Special Rapporteur to devote particular attention to the overall approach
of the study and its methodological and theoretical challenges. The main approaches taken in this regard were spelled out in his first
progress report. 30 They can be summarized
as follows.
97. The Special Rapporteur insisted from the
start on the need for a transdisciplinary approach – albeit with a strong
juridical focus. 31
98. Any attempt to explore and understand indigenous
representations and traditions regarding treaties, agreements and other
constructive arrangements must be carried out so as to favour a decentred view
on culture, society, law and history, and to deal critically with
ethnocentrism, eurocentrism and the evolutionist paradigm.
99. Moreover, the close connection between the indigenous problematique and the phenomena of
colonialism, domination and assimilationist policies had to be thoroughly
reviewed and acknowledged. This is
a connection also made in the academic disciplines
involved (such as anthropology), as well as in the legal discourse and in
positive law. 32
100. There are numerous historical examples of
law as an instrument of colonialism, such as the doctrine of terra nullius, the encomienda and repartimiento systems
instituted in Latin America by the Spanish Crown in the sixteenth century, the
so-called “removal treaties” imposed on the indigenous nations of the
south•eastern United States under President Jackson in the 1830s, and various types of State legislation
encroaching on (or ignoring) previously recognized indigenous jurisdiction,
such as the Seven Major Crimes Act and the Dawes Severalty Act passed by the
United States Congress in
the 1880s, the federal Indian Act in Canada,
post-Mabo legislation in Australia and many pieces of legislation throughout
Latin America.
101. Yet, with rare exceptions, the discourses of law itself,
including that on treaties and treaty-making in the context of European
expansion overseas and that of their successors in the territories conquered,
are not impervious to anachronism and ex post facto
reasoning, thus condoning discrimination of indigenous peoples rather than
affording them justice and fair treatment.
102. A critical historiography of international relations
clearly shows the dangers of this particular kind of reasoning, which projects
into the past the current domesticated status of indigenous peoples as it
evolved from developments that took place mainly in the second half of the
nineteenth century under the impact of legal positivism and other theories
advocated by European colonial powers and their continuators.
103. In his second progress report, the Special Rapporteur
endeavoured, inter alia, to assess the
contribution of that historiography to a better understanding of treaties and
other legal instruments mutually agreed to by indigenous peoples and States,
considering in particular the works of Charles H. Alexandrowicz and other
relevant authors. 33
104. As established above (para. 55), the main
finding that emerges from these works relates to the widespread recognition of “overseas
peoples” • including indigenous peoples in the
current sense of the term - as sovereign entities by European powers and their
successors, at least during the era of the Law of Nations.
105. Consequently, the problematique
of indigenous treaties and other juridical instruments today affecting the
lives of these peoples, hinges on what the Special Rapporteur has termed a process of retrogression, by which they have
been deprived of (or saw greatly reduced) three of the four essential attributes
on which their original status as sovereign nations was grounded, namely their
territory, their recognized capacity to enter
into international agreements, and their specific forms
of government. 34 Not to mention the substantial reduction of their
respective populations in many countries around the world, due to a number of
factors including, assimilationist policies.
106. This aspect can hardly be overemphasized, especially since
the ultimate purpose of the study pertains to the potential utility of yet
another process of reversal that would eventually lead toward renewed
recognition of indigenous peoples as distinct collectivities, allowing these
peoples redress for decades - if not centuries - of discrimination and forced integration.
107. It is against this backdrop that the
following summary of the Special Rapporteur’s findings regarding the three main
categories of juridical instruments retained for study (see para. 93 above)
ought to be considered.
A.
Treaties/agreements
between indigenous peoples and States
108. In his initial research, the Special
Rapporteur focused, by force of circumstance, on the situation of former
European settler colonies, especially in North America and the Pacific, given
the extensive practice of treaty•making in the context of British and French
colonial policy.
109. It should be noted that, although the Special Rapporteur
affirmed initially that few, if any, treaties could be traced back to colonial
times in
Latin
America, 35 further
research has led him to reconsider this assumption.
This modified approach is documented in the third
progress report, especially with the example of the Mapuche parlamentos (Chile). At this final stage of his work,
the Special Rapporteur is inclined to accept that the origin, causes and
development of these juridical instruments can be compared, prima facie and in
some aspects, to those of certain indigenous treaties in British and French
North America. 36
110. In establishing formal legal relationships with peoples
overseas, the European parties were clearly aware that they were negotiating
and entering into contractual relations with sovereign nations, with all the
international legal implications of that term during the period under
consideration. 37
111. This remains true independently of the
predominance, nowadays, of more restricted, State-promoted notions of
indigenous “self-government”, “autonomy”, “nationhood” and “partnership” - if
only because the “legitimization” of their colonization and trade interests
made it imperative for European powers to recognize indigenous nations as
sovereign entities.
112. In the course of history, the newcomers then nevertheless
attempted to divest indigenous peoples, as pointed out above, of their
sovereign attributes, especially jurisdiction over their lands, recognition of
their forms of societal organization, and their status as subjects of
international law.
113. The various ways and means utilized in the process of
domesticating relations with indigenous peoples in the context of those former
European settler colonies were addressed both in the second progress report
(New Zealand, Australia and the
unique case of Hawaii) 38 and
in the
third progress report (Canada, United States and Chile).
39 For a more general
and detailed review of this process and its
consequences, see chapter III below.
114. Nonetheless, it is important to stress at
this point that the passage, for indigenous peoples, from the status of
sovereign nations to that of State•domesticated entities raised a certain
number of questions and posed specific challenges from the point of view of
this study.
115. First of all, in the case of treaty relations, one notes a
general tendency to contest whether treaties involving indigenous peoples have
a standing, nowadays, in international law.
This point of view, which is
widespread among the legal establishment and in scholarly literature, 40 has
been basically grounded alternatively on three
assumptions: either it is held that indigenous peoples are not peoples according
to the meaning of the term in international law; or that treaties involving
indigenous peoples are not treaties in the present conventional sense of the
term, that is, instruments concluded between sovereign States (hence the
established position of the United States and Canadian judiciary, by virtue of
which treaties involving indigenous peoples are considered to be instruments sui generis); or that those legal instruments
have simply been superseded by the realities of life as reflected in the
domestic legislation of States.
116. Whatever the reasoning followed, the dominant viewpoint -
as reflected, in general, in the specialized literature and in State
administrative decisions, as well as in the decisions of the domestic courts -
asserts that treaties involving indigenous peoples are basically a domestic
issue, to be construed, eventually implemented and adjudicated via existing
internal mechanisms, such as the courts and federal (and even local) authorities.
117. It is worth underlining, however, that this position is
not shared by indigenous parties to treaties, whose own traditions on treaty
provisions and treaty-making (or on negotiating other kinds of compacts)
continue to uphold the international standing of such instruments. Indeed, for
many indigenous peoples, treaties concluded with European powers or their
territorial successors overseas are, above all, treaties of peace and
friendship, destined to organize coexistence in - not their exclusion from -
the same territory and not to regulate restrictively their lives (within or without
this same territory), under the overall jurisdiction of non-indigenous authorities. In their view, this would be a trampling on
their right to self-determination and/or their other unrelinquished rights as peoples.
118. By the same token, indigenous parties to treaties have
rejected the assumption held by State parties, that treaties provided for the
unconditional cession of indigenous lands and jurisdiction to the settler States.
119. It is worth noting in this regard that indigenous views on
treaties have begun to receive increased attention in some countries, such as Chile,
New Zealand and Canada. Thus,
in its recent Final Report, the Royal Commission on Aboriginal Peoples, established by
the Government of Canada, recommended that the oral history of treaties, orally
transmitted from generation to generation among indigenous peoples, should be
used to supplement the official interpretation of treaties based on the written
document. 41
120. Nevertheless, the contradictions one notes regarding the
historiography and interpretation of treaties, depending on whether one is
dealing with State-promoted views on this matter, the established academic
legal discourse or the traditions upheld by indigenous peoples themselves, in
their practical consequences undoubtedly create a conflict situation.
121. In addition, these contradictions place a formidable
burden on the formulation and realization of future negotiated legal
instruments between indigenous peoples and States: the
difficulties of negotiating those new instruments without having
previously identified and settled key questions need not be stressed.
122. This observation clearly pertains to all
treaty/agreement-related issues. One
example is the alleged opposition, in the Canadian context, between
treaties of peace and friendship (concluded in the eighteenth century and
earlier) and so-called numbered treaties of “land surrenders” (especially from
the second half of the nineteenth century on). This opposition is
contradicted by indigenous parties to
numbered treaties, who consider that they are parties to treaties of peace,
friendship and alliance and that they did not cede either their territories or
their original juridical status as sovereigns. Similar discrepancies are to
be noted in the United States and New Zealand.
123. Closer scrutiny of the provisions of treaties concluded
between indigenous peoples and States also reveals that in most cases the
subject of such treaties is common in international law, whatever the
historical period considered; thus such treaties deal with questions of
war/peace, trade provisions, protection of the subjects/citizens of each
signatory party, and so forth.
124. Furthermore, while the predominant
present•day legal discourse holds that treaties fall primarily within the
domestic realm of States, the manner in which treaties are dealt with in
municipal law and by the national courts nevertheless also raises a number of questions.
125. In this connection, failure of State parties to comply
with, or their violation of, the obligations assumed under existing treaties,
the unilateral abrogation of the treaty itself (or parts thereof), via State
law or other mechanisms and even the failure of State parties to ratify
treaties negotiated with indigenous peoples were problems identified, at an
early stage of his work, by the Special Rapporteur regarding the significance
of treaties/agreements at the national level.
126. Such problems are, in one way or another, connected with
most juridical situations retained by the Special Rapporteur for study;
moreover, they are not limited to historical situations but also arise with
respect to more modern compacts. 42
127. It follows that the enforcement and implementation of
existing, recognized treaties involving indigenous peoples today can hardly be
taken for granted. Furthermore, it remains to be seen what burden this
state of affairs places on the modalities of
future negotiated agreements between indigenous peoples and States. Obviously, this also has a number of practical consequences for the status and legal personality
of indigenous peoples, both at the national and at the international level.
B. Other constructive arrangements
128. Turning now to the quasi-juridical term
“other constructive arrangements”, it must be recalled that this was defined by
the Special Rapporteur from the start as “any legal text or other documents
that are evidence of consensual participation by all parties to a legal or
quasi-legal relationship”. 43
129. The main example examined under the heading
of “other constructive arrangements” concerns the Greenland Home Rule. At the start of his mandate, on the basis of various submissions made by
the Greenlandic delegates and the Government of Denmark to the Working Group,
the Special Rapporteur thought it appropriate to assess whether the kind of
procedure instituted by Denmark
in 1979 could be useful for the realization of
improved relations between indigenous and non-indigenous parties. 44
130.
His more recent, detailed analysis of Greenland Home Rule,
45
showed
proof, in the view of the Special Rapporteur, that
the arrangement in question entails a number of restrictions for the indigenous
population of the island, both in terms of the process which led to its
establishment and the effects of its provisions. For example, since the Danish Constitution has
full effect in
Greenland, the Home Rule authorities
must abide by all constitutional provisions in crucial fields such as foreign
policy and the obligations arising from international agreements entered into
by Denmark.
131. This could have had certain grounds of legitimacy - in
terms of the real exercise by Greenlanders of the right to self-determination -
had the effective input of the indigenous population of Greenland into the
formulation and implementation of Home Rule not been limited.
132. The Special Rapporteur is of the opinion
that the type of “autonomy regime” provided for under Home Rule does not amount
to the exercise of the right to self-determination by the population of Greenland. By the same token, he believes that the way in which the discussions
took place between Greenlandic and Danish officials prior to the introduction
of Home Rule
in 1979 can in no way be described as a
constructive example of the full exercise of that inalienable right.
133. In other countries, discussions are currently taking place
with a view to establishing (or implementing) autonomy regimes, or adopting
measures to recognize a distinct legal status for indigenous peoples, whether
these are to be decreed by law or to be enshrined in the national constitution. Prominent
examples addressed by the Special Rapporteur concern the Kuna Yala in Panama
and the Atlantic
region in Nicaragua. 46 One should also take cognizance of
the
new developments taking place in Guatemala in the past few years.
134. These autonomy regimes have brought (or may bring) certain
advantages to indigenous peoples. For example, in the case of Panama, autonomy has allowed for the
recognition by the State of the traditional political authorities of the Kuna
Indians, especially the Kuna General Congress, and some control over
development policies within the indigenous
territory.
135. The Special Rapporteur notes, however, that
recognition of “autonomy” for indigenous peoples within the State (whatever
powers or restrictions thereto are established), most probably will neither
automatically end States' aspirations to exert eventually the fullest authority
possible (including integrating and assimilating those peoples) nor nullify
whatever inalienable rights these people may have as such.
136. Moreover, the mechanisms through which
“autonomy regimes” for indigenous peoples are being formulated and implemented
must be assessed, on a case•by•case basis, for proof of free and informed
consent by all parties concerned, especially indigenous peoples. 47
137. Similar concerns might be raised about other
juridical situations that could be described by some sources as “constructive
arrangements” - most prominently the James Bay and Northern Québec Agreement (Convention in its French version), the first
in a series of so-called “comprehensive land claims settlements” in Canada -
which were addressed by the Special Rapporteur in his third progress report. 48
138. These concerns refer to, inter
alia, the fact that, in this particular case, treaty negotiations were only
set in motion after considerable turmoil in connection with a vast,
government-sponsored hydroelectric project. Moreover, the amount of litigation
the agreement in question has generated led the Special Rapporteur to ponder
very seriously the efficacy of treaty negotiations in a situation of economic,
environmental and political duress resulting from one-sided government policies.
139. Given the actual prevalence of the policy of
comprehensive land claims settlement in Canada and the avalanche of
documentation requiring review in this regard, the Special Rapporteur is not in
a position, at present, to hold anything more than tentative views on other
cases regarding this particular type of “constructive arrangement”.
140. Discussions and negotiations currently
taking place in several countries (not only in Canada), warrant further,
long-term analysis of the mechanisms envisaged and applied to arrive at a
settlement, and the modalities of their implementation. It should
be noted in this regard that the completion of several
land claims settlements and so-called “modern treaties” in Canada raises a
number of interesting issues. Among
them is the wide variety of parties
(indigenous nations, provincial authorities, and the federal Government)
involved in such treaty•making processes.
141. The significance and international relevance of
developments in Canada cannot be overstressed, if only because they highlight
the importance and potential utility of establishing sound, equitable
“ground rules” for the negotiations required to draft and conclude
“constructive arrangements”, as well as for the efficient performance of the
mechanisms for their practical implementation which are so necessary for
developing new approaches to indigenous problems, not only in Canada, but also
in all other multi-national countries with the same or similar problems. Indeed,
all this will be put to the test
in the vast array of “comprehensive land claims settlement” and treaty
negotiations that are currently taking place in various regions of Canada, for
example, in British Columbia - where a first agreement was reached with the
Nishga in 1996 - and in the Northwest Territories - where one notes the particular
difficulties encountered by indigenous peoples. Thus, after negotiations
with the Déné nation as a whole broke up in the late 1980s, the State party
decided to negotiate with individual bands. To date,
two settlements have been reached, namely with the Sahtu
and the Gwich’in. 49
142. Such fragmentation of indigenous entities via the
negotiation process also occurred in other cases, for example that of the
Lubicon Cree, in which, according to the information available to the Special
Rapporteur, a new band was created - under questionable conditions, according
to some indigenous sources - to facilitate a partial land claims
settlement. To date,
however, the Lubicon case itself has not been settled, mainly
because the indigenous party is unwilling to accept the complete extinguishment
of native title as a prerequisite for settlement.
143. In all situations - whether or not governed
by treatries/agreements • the issue of possible extinguishment of indigenous
rights to their lands, either by treaty/agreement or “constructive
arrangements”, is of crucial importance, since it imposes duress on the
indigenous party.
144. It follows that the category of “other
constructive arrangements”, while added belatedly to the mandate of the Special
Rapporteur, has revealed itself to be of particular significance as far as how
to identify and duly establish solid bases for a new, more equitable future
relationship between the indigenous and non-indigenous sectors of society is concerned.
145. At this stage it is important to note that
contrary to treaties (especially so-called “historical” treaties), constructive
arrangements – and this applies to all examples considered to date under the
mandate of the Special Rapporteur - are intended, per se, to be dealt with
exclusively within the municipal setting.
146. From the abundant information recently
received, in situ, by the Special Rapporteur, it seems clear that in the
Canadian context, constructive arrangements such as “comprehensive land claims
settlements” and so-called “modern treaties” are basically conceived as a means
of settling all outstanding indigenous claims. According
to this information, they mostly concern areas in which indigenous peoples are not parties to treaties. In general it remains
to be seen in what manner the enforcement and implementation of the provisions
of possible constructive arrangements of this type can be ensured, especially
for the indigenous parties to such agreements.
C. Situations lacking specific
bilateral legal instruments to govern relations between indigenous peoples and States
147. From the start, the Special Rapporteur decided that, in
order to fulfil his mandate, it was imperative to review the situation of
indigenous peoples that are not parties to any of the instruments covered by
the study.
148. Lacking such a review, it would be
impossible for him to assess whether or not treaty-making (again, in the
broadest sense of this term) can be considered as an appropriate juridical tool
to improve the situation of indigenous peoples in general, to set the pattern
for eradicating any discriminatory treatment against them and to gradually put
an end to the present•day antagonistic nature of the relationship between
indigenous and non-indigenous peoples living together in many countries.
149. Regarding the categories of indigenous peoples falling
under the present section, the Special Rapporteur identified the following
general situations in his first progress report: (a)
indigenous peoples who have never entered into consensual relations with
any State; (b) indigenous peoples parties to instruments that were unilaterally
abrogated - either formally or by way of outright non-implementation - by the
State party; (c) indigenous peoples who participated in the negotiation and
adoption of instruments that were never ratified by the competent State bodies;
and (d) indigenous peoples living in countries where, as the result of an
effective process of acculturation, the municipal legislation lacks specific
provisions guaranteeing distinct status to them and protection of their rights
as peoples.
150. Peoples falling into one or more of these groupings
include, of course, those who, because of the lack of recognition of their
indigenous status by the State, have been denied any possible redress - either
in law or by formal negotiation - in conflict situations relating, precisely,
to this status. 50
151. First and foremost, it must be pointed out
that, at present – and with very few exceptions - national and international
legal texts having a bearing on the living conditions of indigenous peoples are
enacted and enforced by State institutions without direct indigenous input.
152. The cases initially retained for study under
this heading included the Aborigines and Islanders in Australia, the Gitksan
and Wet’suwet’en in British Columbia (Canada), the Yanomami of Brazil, the
indigenous Hawaiians, the Mapuche (Argentina and Chile), the Maya of Guatemala,
the Lubicon Cree of Alberta (Canada), the San (Botswana), the Ainu (Japan), the
people of the so•called rancherías in
California (United States) and the Kuna of Panama.
153. Having completed his research, the Special Rapporteur
considers that it may be useful to review the above list, so as to determine -
at least provisionally - what would be the most practical and fruitful means
(i.e. treaty/agreement renegotiation and/or proper
implementation, “constructive arrangement”, resort to international bodies, or
some other formula) of constructively approaching, in the future, the wide
array of current situations confronting those peoples mentioned above.
154. In all cases, the historical development of each of their
individual predicaments must be duly considered, since it may provide definite
clues as to the suitability of the possible available solutions.
155. It should be stressed, however, that any decision
concerning such a solution must be reached with full participation of the indigenous party. No
other approach may lead to a much-needed process of confidence-building and
thus to consensual legal instruments.
156. The Special Rapporteur has already indicated changes
suggested regarding the treaty situation in Latin America.
157. Thus, the Mapuche can be included in the
category of peoples who have already participated in a process of treaty-making. Others, like
the Kuna, may gain protection through “constructive
arrangements”, a process that is apparently still ongoing. The
case of the Maya and Yanomami are discussed below.
158. Furthermore, at this final stage of his research, the
Special Rapporteur is in a position to approach the other cases in question
according to the pattern described below.
159. A first series of situations, including
those of the Lubicon Cree and the Gitksan and Wet’suwet’en in Canada, should be
considered under the category of possible constructive arrangements, provided
certain aspects of their situation can be resolved at an early stage in
mutually acceptable terms.
160. The case of the indigenous peoples of Australia might be
addressed through a process of treaty-making, assuming the Makarrata (or treaty), called for by the indigenous parties since
1980 remains a running issue. 51 Nevertheless, this Makarrata should also be viewed not only
against the backdrop of the so-called reconciliation process launched by the
Australian federal Government in 1991 by virtue of the Council for Aboriginal
Reconciliation Act, but also in the light of recent judicial and legislative
developments, most prominently the Mabo (No. 2) judgement of the Australian
High Court (1992) and the Native Title Act enacted at the federal level
in
1993.
161. In the case of the rancherías in California, its relevance hinges mainly on the failure
of the State party to ratify texts already negotiated with the peoples
concerned and should therefore also be considered as a situation of eventual
re•emergence and proper implementation of treaties.
162. Considering the above, the Special Rapporteur has been led
to believe that other cases of the failure of State bodies to ratify treaties
negotiated at some point in history with indigenous parties ought to be
re-examined at the appropriate level, with a view to determining the
possibility of bringing the ratification process to completion.
163. By virtue of the so-called Apology Bill enacted by the
Congress of the United States (P.L. 103-150, of 1993), among other reasons, the
situation of the indigenous Hawaiians takes on a special complexion now. The Apology
Bill recognizes that the overthrow of the Hawaiian
monarchy in 1898 was unlawful. By the same token, the 1897 treaty of annexation
between the United States and Hawaii appears as an unequal treaty that could be
declared invalid on those grounds, according to the international law of the time.
164. It follows that the case of Hawaii could be re-entered on
the list of non-self-governing territories of the United Nations and
resubmitted to the bodies of the Organization competent in the field of decolonization.
165. Still in connection with the list of cases considered
above, to the knowledge of the Special Rapporteur, the Yanomami of Brazil, the
Maya of Guatemala, the San (Botswana) and the Ainu (Japan) are the only
examples of indigenous peoples who never entered into consensual juridical
relations with any State.
166. The question of whether, and in what manner, each of these
indigenous peoples should seek a negotiated agreement, or any other freely
agreed-to formula, with the States in which they now reside remains to be
addressed on a case-by-case basis with adequate indigenous input.
167. Particular consideration should be given, in these cases,
to the practical day-to-day consequences (sometimes grave) of the lack of such
agreements for the juridical and political status of the peoples concerned in
the mixed societies in which they now live, and for the preservation, promotion
and effective realization of their historical rights as peoples, including
their human rights and freedoms.
III. A LOOK AT THE PRESENT: ORIGIN, DEVELOPMENT AND CONSEQUENCES OF THE DOMESTICATION PROCESS
168. In establishing the mandate of the Special Rapporteur,
both the Commission on Human Rights and the Economic and Social Council
instructed him
“[to take into proper account] the social-economic
realities of States”. 52 It is therefore imperative for him to review the
present•day situation of
indigenous peoples now inhabiting multi-national States. However, the current situations cannot be fully understood if the
origins and development of the process of domestication of indigenous issues
are not examined as well.
169. Any attempt, at the end of the twentieth
century, to arrive at a general approach to the vast, complex, and more than
500•year•old problematique of the
indigenous peoples, should not - and cannot - ignore a fundamental fact: their initial contacts with “non-indigenous”
peoples from other parts of the world, dating back to the late fifteenth
century, were the result of the launching and development of European colonial expansion.
170. This expansion was inherent to the new mode
of production emerging in Europe during the final part of the late Middle
Ages. By the last decade
of
the fifteenth
century, this new economic model had already developed enough scientific,
technological and financial wherewithal to allow the successful launching of
exploration companies, “discovery” expeditions and colonization in the search
for new trade routes and markets in far•off regions. The theatre of these operations encompassed the
Americas, Asia, Africa, the vast expanses of the Pacific and even certain parts
of the periphery of Europe itself.
171. At a later stage, other contributing factors
to this expansionism were: religious intolerance, oppression based on national
origin and the economic and social marginalization of certain sectors of the
European population, as well as antagonism and confrontation between the
European powers in various epochs. All this
would, in later centuries, foster both the establishment of new initial
contacts in the hinterlands of the territories “discovered”, and the further
development and consolidation of the colonial phenomenon as a whole.
172. Despite the surfeit of pious excuses that
has been found to justify ethically the launching of this overseas colonial
enterprise, and the pseudo•juridical (sometimes even openly anti-juridical)
reasoning which has attempted to defend it “legally”, there is irrefutable
evidence that its clearly•defined goals had nothing either “humanitarian” or
“civilizing” about them.
173. Its first raison
d’être was to guarantee a permanent presence of the overseas power, either
settler populations or mere trading posts, in territories inhabited by other peoples. Secondly, the overseas power sought to acquire the rights to exploit the natural
resources existing there and to secure these new markets for the import and export
needs. Thirdly, it coveted those new strongholds to strengthen its
position in the struggle with other European
powers. Finally, it sought to
safeguard what had been acquired by imposing its political, social and economic institutions
and modalities on the peoples inhabiting these
lands.
174. Those goals were to be accomplished at any cost, even -
should it be necessary and possible - that of the destruction of often highly
advanced cultures, socio-political institutions and traditional economic models
developed over centuries by the indigenous
peoples.
175. As has been reasoned before in a previous
report, submitted in 1995, the overseas colonial undertaking differed
completely from the very common phenomenon of expansion into adjacent
territories (at the expense of their neighbours) practised by the peoples in
those “new” territories before the arrival of the European colonizer. The inherent nature of the colonial undertaking, the exploitative,
discriminatory and dominating character of its “philosophy” as a system, the
methods employed and the final results it had on very dissimilar societies mark
the difference.
176. These dissimilarities have today acquired,
as a result of the still unfinished decolonization process, an even greater
dimension as far as Asia, the Pacific and Africa are concerned. As a direct result of decolonization, the gap left by the “non-indigenous”
colonial political powers in those continents has been filled by population
sectors whose “indigenous” (or “autochthonous”) condition is indisputable by
any of today’s standards.
177. It must be borne in mind that, according to
all available information, the terms “indigenous”, “native”, “mitayo”, “Indian”, “autochthonous populations”
and others of a similar cast do not come from the lexicon of those whom we
today label “indigenous peoples”, but from the vocabulary utilized by the
“discoverers”/conquistadores/colonizers and
their descendants, to differentiate themselves • in a relationship of
superiority/inferiority • from the original inhabitants of the new territories
being added to the European crowns.
178. The initial encounters were, of course,
varied in nature. Some were guided solely by the logic of outright force. We must recall that the sword
• efficiently backed by the cross • has for
more than 500 years sealed the fate of tens of millions of the original
inhabitants of Latin America and the Caribbean and that of their descendants.
179. The right emanating from force and imposed
by it as an instrument of assimilation/marginalization policies was also the
basis of the “asymmetrical” bilateral relations between indigenous peoples and
the criollos established in the new Latin
American republics after independence from Spain and Portugal. The victory of
Ayacucho meant little or nothing for the original inhabitants, who simply found
themselves subject to the domination of new
rulers.
180. This has been, in general, the situation in
the Latin American region, both in those countries that were fully colonized
before independence was obtained and in those where it was left to the new
republic, for example in the cases of Argentina and Chile, to complete
domination of the indigenous population, also by force, in every corner of the new State. Only in an extremely limited number of cases (when no way could be
found around an effective refusal to submit, as in the parlamentos in the Chilean Araucania) are there vestiges of
juridical obligations assumed (although rarely met) with “the Indians” through
negotiation and legally binding instruments.
181. However, in other latitudes of the Americas,
as well as in other areas of the world, these first contacts were not marked
exclusively by military force. On the one hand, this was related to
then-predominating political and juridical
discourse in the societies from which the outsiders came. On the other, it
reflected the balance of forces that originally existed between the newcomers
and the well•organized societies that had populated these “new” territories for
centuries, a balance that was to change radically as the colonization process progressed.
182. A case in point is Britain’s progressive
colonization - and that further advanced by its successors in the original 13
colonies (the kernel of the United States) at the end of the eighteenth century
- of the vast tracts of land today comprising Canada and the United
States. There, a “juridical factor” (i.e. treaties) was introduced. To a certain degree, this form of initial contact can also be seen in the
French colonial endeavours in parts of these same territories at that time. During the progressive advance from the Atlantic to the Pacific, military might
coexisted with negotiations and juridical instruments as the basis of relations
between the colonizer and the indigenous peoples encountered.
183. In the general run of late cases, especially in Africa and
in certain areas of the Pacific, the initial colonial presence and implantation
also began with a low profile. This
can be seen, for example, in British behaviour both in Africa and in New Zealand.
184. In many places, successive waves of settler
migration from the metropolis (in the case of Hawaii) or of royal trading
companies’ representatives (frequent in the “East Indies”), and certain legal
modalities (some highly “innovative”, such as the “perpetual leasing” of
territories) emerged alongside the traditional juridical forms (bilateral
agreements and treaties). All, however,
sought the same end: to
secure colonial domination.
185. These various options were employed according to the needs
and possibilities of the alien powers in each specific case, whether the
purpose was to formalize, ex post facto,
the acquisitions already made or to smooth the path for any future military
action that might be required.
186. However, something must be said about the
juridical instruments that emerged after the initial contacts in the various
periods. Their intrinsic nature, form and content make it clear that the indigenous
and non-indigenous parties mutually bestowed on each other (in either an
explicit or implicit manner) the condition of sovereign entities in accordance
with the non•indigenous international law of the time.
187. It must be stressed that certain States had
a very powerful motivation for making these treaties or other international
instruments of a contractual nature requiring the consent of participants. Furthermore, this motivation (in the direct interest of the non-indigenous
party) was quite clear: to
legitimize (via the acquiescence of the autochthonous sovereign of the
territories in question) any “right” (real or intended) with which they could
counter opposing claims advanced by other colonial powers vying for control of
those lands.
188. However, to acquire such “rights” via
derivative title (since they clearly lacked original title, or because the
legality of their presence in those areas was being questioned), required that
they seek the agreement of the legitimate holder of the original title, i.e.,
the indigenous nation in question. The latter
would have to do this by the formal cession
of their lands (or their sale, or a concession of
acquisitive possession or any other type of valid transfer).
189. In accordance with European legal tradition
and formalities, this transfer should appear in a document that could be
presented as proof before the colonizing power’s equals in the “concert of civilized nations”. The ideal
instrument for this, according to the international law of the epoch, was the treaty. Furthermore,
the only entities with the juridical capacity to make treaties were (like today), precisely, international
subjects possessing sovereignty - their own or delegated by other sovereigns -
through the exercise of it.
190. In a second phase of the colonization
project and until it peaked - during its “classical” manifestation or a
variation thereof, and especially as of the second third of the nineteenth
century - there was a visible increase in
the use of military force to acquire vast tracts of “new” territories.
This shift was very much in line with
the enormous power already being wielded by the traditional European imperial
powers and by others who emerged later to begin their own expansionism.
191. The newcomers’ descendants increased their
military and economic capacity. That of
the indigenous peoples remained (in the best of cases) the same or (most frequently) decreased rapidly, which
resulted in both cases in a growing vulnerability of these peoples to the
machinations of the non•indigenous, with whom they had possibly made
treaties/agreements, but who now wished to ignore their sovereignty and impose
a “new order” on their ancestral homes.
192. Thus began the process that the Special
Rapporteur has preferred to call (without any claim to originality) the
“domestication” of the “indigenous question”, that is to say, the process by
which the entire problematique was removed
from the sphere of international law and placed squarely under the exclusive
competence of the internal jurisdiction of the non-indigenous States. In particular, although not exclusively, this
applied to everything related to juridical documents
already agreed to (or negotiated later) by the original colonizer States and/or
their successors and indigenous peoples.
193. It may be argued that in the light of international law
today, and particularly on the basis of Article 2, paragraph 7, of the Charter
of the United Nations, such a claim for the reserved domain of domestic
jurisdiction could, prima facie, find juridical backing.
194. However, to legitimize beyond any doubt the ways and means
used to take issues that originally belonged to the realm of international law
away from it and to justify making them subject solely to domestic legislation
unilaterally passed by the States and adjudicated by domestic non-indigenous
courts, States should produce unassailable proof that the indigenous peoples in
question have expressly and of their own free will renounced their sovereign attributes.
195. It is not possible to understand this process
of gradual but incessant erosion of the indigenous peoples' original
sovereignty, without considering and, indeed, highlighting the role played by
“juridical tools”, always arm in arm with the military component of the
colonial enterprise.
196. In practically all cases, both in Latin
America and in other regions mentioned above, the legal establishment can be
seen serving as an effective tool in this process of domination. Jurists (with
their conceptual elaborations), domestic laws (with their
imperativeness both in the metropolis and in the colonies), the judiciary
(subject to the “rule of [non-indigenous] law”), one-sided international law
(its enforcement assured by military means) and international tribunals (on the
basis of existing international law) were all present to “validate” juridically
the organized plunder at the various stages of the colonial enterprise.
197. There are abundant examples of this: the 1898 Joint Resolution under which the U.S. Congress, after using force
to impose a treaty, consummated the outright annexation of the sovereign State
of Hawaii (which had manifold international juridical relations with other
“civilized” nations), and the “scramble for Africa” formalized at the 1885 Berlin
Congress by the colonial powers of the epoch are just two of the many
examples. Others also supporting this assertion can be found in the progress reports
submitted earlier by the Special Rapporteur.
198. The concept of the “rule of law” began to
traverse a long path, today in a new phase, towards transformation into “the
law of the rulers”.
199. Yet, one cannot fail to mention the role
played by decisions taken by some indigenous peoples themselves in this same process
of domestication, most of them, however, taken under extremely difficult
conditions or in a clear “state of necessity”, to use a juridical expression.
200. Nevertheless, the Special Rapporteur has
chosen to state his views on this matter keeping very much in mind the
forward-looking aspects of his mandate, and highly aware of the significance of
the lessons to be drawn from history, mutatis
mutandis, in the process of building a new, more just, and solid
relationship of coexistence between the indigenous and non•indigenous sectors
in a considerable number of modern societies. History
is an excellent source of knowledge for shaping political action. To ignore history would make it incredibly difficult to understand fully the
present, and practically impossible to face the future wisely.
201. In this context, let it be said that the
Special Rapporteur’s historical research has shown, in his view, that not all
indigenous nations made the wisest choices at
all times. That is to say, at some crucial moments in their history, some indigenous nations were not
capable of putting the need to unite among themselves over their individual
interests, even though unity was necessary to confront properly encroachment on
their sovereign attributes. This was true even when the ultimate intentions of
the newcomers were already apparent. The
terrible consequences inherent in allowing themselves to be divided appear not to have been totally perceived.
202. In addition, on more than one occasion they seem not to
have recognized the advantages and disadvantages, in all their dimensions, nor
the final consequences, of a policy of alliance with European powers. This can be said both of those who adopted
this policy in line with their ongoing fratricidal struggles and of those who
decided to favour one of the non-indigenous powers over the others in the
military confrontations that took place in their ancestral lands.
203. Further, it is also apparent that they could not fully
appreciate (or that they widely underestimated) the questionable role played,
and still played in many cases, by religious denominations or their
representatives as effective instruments of the colonial enterprise in its
various stages.
204. It is easy to see the negative effects for indigenous
peoples of such a combination of endogenous and exogenous factors, not only on
their initial sovereign condition, but also on their overall international
juridical status. These effects also included the extinction (or substantial
reduction) of their territorial base and undermined their political, economic,
juridical, cultural and social order in general, and even their survival as a
distinct society.
205. These negative effects are perceptible, to a greater or
lesser degree, whether or not the relations between these peoples and the
colonizers were juridically formalized by means of treaties/agreements.
206. The most lethal of these effects has been, of course, the
extinction of these peoples as social entities with distinct identities that
has already occurred (or presumably will soon
occur).
207. It is impossible to determine with any
certainty, in 1998, the number of indigenous peoples which have become extinct
since the time of their first encounter with the “discoverers”, as the result
of the “civilization” imposed on them. Nor is it possible to say how many more
will disappear in the not so distant future, unless the circumstances in which they
live in multi•national States today do not change.
208. To cite just two known examples, according
to all indications, the original inhabitants of Catalina Island off the coast
of California and the Yanomamis of Roraima should be included in the category
of “peoples in danger of extinction”. The relentless carving away of their lands as
a result of the most varied actions, their expulsion from these lands
(either through the use of direct force by the new State or because they could
not obtain the resources to continue practising their traditional economic
activities or to continuing tilling the soil), draconian restrictions on the
use of their own languages and on the practice of their religious beliefs (or
the prohibition of one or both) have contributed, historically and currently to
this situation.
209. The effective exercise of their attributes as
international subjects had already been effectively liquidated by around the
third decade of the twentieth century in all areas of the world in which
bilateral treaties between indigenous and non-indigenous peoples had been
relatively frequent in the past. This process echoed the United States
Senate decision at the beginning of the 1870s, to
discontinue treaty-making with indigenous nations and to refuse treaty status
to the instruments still awaiting ratification.
210. In this respect, one must also recall the
indigenous peoples’ unsuccessful attempts (despite President Woodrow Wilson’s
“14 points”) to re•establish recognition of their international status by the
League of Nations; or to gain access, in their own right as peoples, to the
International Court of Justice, established under the Charter of the
United Nations as the principal judicial organ of
the new world organization that emerged as a result of the Axis defeat in the
Second World War. This was so despite
the large number of indigenous soldiers who had contributed to the Allied
victory in that war and despite the Preamble to its Charter which declares that
the United Nations was established by “the peoples
of the
United Nations” who through their
Governments declared themselves in 1945 “determined to establish conditions
under which justice and respect for the obligations arising from treaties
and other sources of international law can be maintained” (emphasis added). Furthermore,
this was the situation even though the
Charter, in formulating one of the purposes of the Organization, recognizes the
importance of respect for “the principle of equal rights and self•determination
of peoples” (Art. 1.2), a simple, direct and unqualified way of saying all
peoples, bar none.
211. In the current contemporary context and in the framework
of this same provision of the Charter, it is worth underlining, at least in
passing, the patent incongruity in the position of those who used this Charter
reference as a basis for legitimizing the decision by some nations formerly
part of the today-extinct Soviet Union (for example, the so-called Baltic
countries) to secede from it, claiming their status as fully sovereign nations,
while at the same time objecting to even a mention of that same right in the
context of debates on indigenous issues.
212.
This is not the only
example of the double•standard
treatment indigenous peoples are receiving currently in the
United Nations, although the Organization has devoted
much greater attention to this issue since 1982, with the
establishment of the Working Group on Indigenous
Populations. The insurmountable obstacles confronting \
their efforts to represent themselves fully in bodies of the
United Nations system other than the Working Group
should be kept in mind. Such was the case in
1989, when ILO discussed and adopted Convention No. 169,
which is directly related to their daily living conditions.
treatment indigenous peoples are receiving currently in the
United Nations, although the Organization has devoted
much greater attention to this issue since 1982, with the
establishment of the Working Group on Indigenous
Populations. The insurmountable obstacles confronting \
their efforts to represent themselves fully in bodies of the
United Nations system other than the Working Group
should be kept in mind. Such was the case in
1989, when ILO discussed and adopted Convention No. 169,
which is directly related to their daily living conditions.
213. Moreover, similar difficulties blocked the
much•needed full participation of indigenous organizations in the Working Group
established by the Commission on Human Rights to elaborate a draft United
Nations declaration on the rights of indigenous populations, a forum for which
strict rules for participation were instituted that, in fact, limit to a
considerable degree the indigenous input into
the debate. No similar rules were applied for non•governmental organizations without
recognized status with the Economic and Social Council in the case of another
working group established by the Commission, that dealing with the rights and
responsibilities of “human rights defenders”.
214. The constant reduction (or total
disappearance) of the territorial base of indigenous peoples not only affected
their capacity to survive as peoples but is the source of the most crucial
aspect of the “indigenous question” in its current context, that of the right
of these peoples to the use, enjoyment, conservation, and transmission to future
generations of their ancestral lands; in peace, without outside interference,
in accordance with their own uses, customs, and norms of social life. We shall come back to this issue.
215. Once the work of the initial conquistadores/colonizers or their successors was completed, the
colonial process advanced towards the gradual or rapid dispossession of
indigenous lands.
216. It is not the task of the Special Rapporteur
in this final report to describe in detail the harsh impact on indigenous
peoples of being subjected to a new and totally alien social, economic, and
political•juridical order. Much has been published on the subject by both
indigenous and non-indigenous sources (including official government bodies in
the States now inhabited by these peoples). He will only attempt to summarize its
most relevant effects, some still lingering on even at the end of the twentieth
century, and in particular those touching on land rights.
217. It must be stressed, in this regard, that for these
peoples their land (from whence they came or where they live today) holds
singular spiritual and material values. It contains for them the essential
elements of their cosmogony. It is the ultimate source of life and wisdom. They believe in the collective enjoyment of what it provides; in the
inalienability of something not “owned” but “preserved” for future
generations. It
plays an irreplaceable role in their religious
practices. In short, their
understanding of the land was (and
is) singularly different from that imported by the newcomers and their
successors, whose approach, logically, reflected (although not always exactly)
the predominant values of their respective
societies.
218. Grosso modo, the newcomers and their successors imbued (and imbue)
the land with an essentially patrimonial value, making it subject to exclusive
individual appropriation (and, thus, capable of being passed on to others at
the will of the title holder), a source of material wealth and a basis for
political and economic power.
219. The process that took the indigenous
peoples’ lands from them left behind very limited and debilitating alternatives for survival: vassalage (or servitude in its diverse forms), segregation in reduced
areas “reserved” for them, or assimilation into the non-indigenous sector of
the new socio•political entity created without
indigenous input. The last alternative meant the social marginalization and discrimination
prevalent in these mixed societies, about which little or nothing could be done
despite praiseworthy efforts by certain non-indigenous sectors.
220. Various methods were utilized to achieve dispossession of
the land. They, unquestionably, included treaties and agreements, at least if
we accept the non-indigenous interpretation of these documents (and, in
general, that version is the only one available in written form). This
issue will be returned to later.
221. Coercion - either by armed force or by judicial and
legislative means, or both - was very frequently resorted to. This was true
whether or not its employment was preceded by formal juridical commitments to
the contrary.
222. It went to extremes. An
example is the forced exodus in the 1830s to the other side of the Mississippi of the “five civilized
tribes” of the south•eastern United States. This
is the first documented case of “ethnic cleansing”.
223. Another method frequently employed to attain
dispossession in cases in which no juridical instruments of any sort had been
compacted was to take advantage of the inability of the indigenous peoples (or
individuals) to show “property deeds” considered valid under the new, non-indigenous law. This
made their ancestral lands vulnerable to seizure by non-indigenous individuals
holding such documents (acquired by the most diverse - and, most often, less
than honourable - means) or by the central or local authorities, who claimed
them as public property (or as lands belonging to the Crown or federal lands)
subject to their jurisdiction.
224. The total or partial dispossession of indigenous peoples
of their lands (a basic life source in all categories) created new forms of
dependency or sharpened pre-existing ones. First,
it notably affected the ability of indigenous authorities to exercise their functions
effectively and also the capacity of indigenous societies to be self-sustaining
by way of their traditional economic activities. All this had a traumatic impact
on their social framework.
225. The new non-indigenous authorities hastened
to create a distinct political-administrative order to replace the traditional
indigenous authorities and the decision•making mechanisms that had guided these
societies for centuries. This was a generally successful effort. However, in multiple cases it could only be achieved with the participation of
certain segments of the indigenous societies, already subject to stresses of
all types.
226. Similarly, in recent times, the possibility of indigenous
participation, as such, in certain aspects of the non-indigenous established
political order has opened up some multi-national societies. This is particularly
true in the parliamentary area. Examples
can be found in Colombia and New Zealand/Aotearoa. The Special Rapporteur welcomes these developments, which appear
to be steps in a positive direction. This is particularly true in the
case of New Zealand. Its electoral
law gives the Maaori population the option (to be freely taken) of registering on the list reserved for them. Still it remains to
be seen just how much of a real impact this type of measure will have in the
enormous effort required to achieve more just relations between both sectors of
these societies.
227. In economic terms, the loss or substantial reduction of
their territorial base had lamentable consequences for indigenous peoples. The impossibility of their continuing
their traditional economic activities (or the necessity of carrying them out in
greatly reduced areas) generated a constant migration to non-indigenous
economic centres, in particular to large cities. For very
many communities this has meant the loss or
severe reduction of their demographic base and, in general,
acculturation and progressive loss of indigenous identity by a significant
number of their members.
228. Today, in lands still not affected by dispossession - in
particular, in those cases where no treaties or agreements exist - there is a
continuing and visible impact on the traditional economic activities. This is so
because of the
juridical insecurity (according to non-indigenous law) of their effective
possession of the land and the inroads made by alien technology for the
exploitation of natural resources (including the subsoil, rivers, forests and
fauna).
229. The list of such cases is long and varied
and it is impossible to eumerate them all in
this report. It is enough to point out that the great majority of these people eke out an
existence in precarious conditions. This is due to a number of factors: the
direct threat of forced eviction, in some cases; the obligation at times to obtain licences or
permits from non•indigenous administrative authorities to be able to engage in
their traditional economic activities (or to be limited by restrictive quotas
that do not cover their needs); the obligation, in other cases, to seek
authorization from these authorities to make use of natural resources, even
when their ownership has been recognized even under non-indigenous law; or,
generally, the effects of modern technology on their traditional habitat.
230. The general situation of the Australian aborigines - even
after the well-known decision in the Mabo case - and the situations of the
Lubicon Cree and Hobbema peoples/nations in Alberta (Canada), the Dene (Navajo)
in Arizona (United States), the Crees in James Bay, Québec, many segments of
the Maaori peoples in Aotearoa/New Zealand, and the Mapuche in southern Chile
are some tangible examples of indigenous peoples living in the precarious
economic conditions referred to above.
231. In this respect, it should be mentioned that
during his field work among the Cree of Québec (1993) and the Mapuches (1998),
the Special Rapporteur was able to confirm, both from personal observation and
from vivid testimony, the enormous irreversible damage already caused to, or
threatening, the indigenous habitat because of the rerouting or damming of
large rivers (such as the upper Bio-Bio or the Great Whale river basin) to
build large•scale hydroelectric plants, whose output, by all accounts, is
earmarked for consumption by the
non-indigenous population (even in
other countries).
232. As can be inferred from all of the above,
every aspect of the indigenous peoples’ socio-cultural life, including,
obviously, their religion, has been negatively affected by the overall process
of “domestication” (which touches on all areas), as well as by its obligatory
corollary, dispossession of and the loss of effective control over their
ancestral lands.
233. Whether subject to a system of direct servitude or to a
sort of judicial guardianship (or trusteeship) similar to that applied to
minors; whether assimilated (or on the way to being assimilated) and
marginalized in the new societies; or restricted to small areas surrounded by
another, powerful, aggressive and alien culture, or living in other lands on the
periphery - in flight from the non-indigenous authority (having lost their
own), these peoples have witnessed multiple attacks on their rich social fabric.
234. First, it is important to note the forced separation of
families, as children and adolescents were sent, for long periods during their
formative years, to religious schools far from their original environment. In those institutions,
they were rewarded for accepting assimilation, while any expression of their
original identity (such as speaking in their own language) would draw severe
punishment, including corporal punishment.
235. Indigenous peoples also saw the destruction of many
manifestations of their historical-cultural heritage and the desecration of
their cemeteries and other sacred sites. Their
archaeological treasures and even the bones of their ancestors are still
exhibited today in numerous non-indigenous museums around the world, despite
the efforts to recover them, the national laws passed to protect them and the
protests of many international organizations.
236. Over the remains of demolished temples there stand
impressive cathedrals or other manifestations of the new culture. In addition, the Special Rapporteur
has received sound information on at least two attempts in recent years to
build golf courses on lands of recognized religious value to indigenous peoples.
237. On no few occasions, and during long periods, their
customs, ceremonies and religious practices were simply and categorically prohibited. Moreover, in many cases they lost access, for diverse
reasons, to the places where, according to their traditions, these practices
and ceremonies should take place. In one or another of these situations, they have
been forced either to celebrate
them clandestinely at the risk of serious sanction (the case of Sundance in North America), or (like the
slaves brought from Africa to the Caribbean and Brazil) to disguise them
ingeniously in alien liturgy, such as that of the Catholic religion, a common
phenomenon in Latin America.
238. Their institutions and cultures were
considered “inferior”, “archaic”, and “inefficient and impractical” by non-indigenous sectors. These negative views were promoted daily and urbi et orbis by the most diverse methods (“scientific” literature
or simply by word of mouth) and quickly became part of the “conventional
wisdom” in large sections of the political and academic world, as well as for
vast segments of the population at large, in the plurinational societies in
which indigenous peoples continue to live today.
239. Thus, there should be nothing surprising
about the desire of a number of indigenous individuals to assimilate, nor about
their acceptance of the ethical or material values of the alien society by
which they are surrounded. The common root of this evident threat to their
survival as distinct peoples can be found in the obvious erosion of self-esteem
afflicting certain sectors of diverse indigenous peoples nowadays. This is even
true at a stage such as the present one, in which there is also a highly
noticeable, vigorous process of recovery and development of these peoples’
traditional values.
240. In this regard, it should be pointed out
that the lack of employment opportunities and, in general, the inability, in
the current circumstances, to achieve sustainable development according to
their own traditions has contributed heavily to this loss of self-esteem. This is
particularly the case for peoples caught in the “indigenous
reserves” system established in the United States and Canada, as well as in
other situations in northern Europe and Greenland.
241. All too frequently, the daily reality of
indigenous peoples feeds the belief that their survival is possible thanks only
to the “subventions” and “services” provided by the State on which they depend. These services may be of greater or lesser quality and coverage,
and the assistance may be direct or indirect, but what all these instances have
had in common for centuries is that their cost is always, by definition, less
than the value of the benefits accrued by the non-indigenous sector with whom
they share the society.
242. Finally, it must be stressed that in
practically all cases in which indigenous peoples live in modern multi•national
States their social development indexes are lower, or less favourable, than
those of the non•indigenous sectors with whom
they coexist. This is true for some of the most important socio-economic indexes: employment, annual income,
prenatal and infant mortality, life expectancy, educational level, percentage of
the prison population, suicide rate, etc. Quite
regularly, the official figures provided by the competent sources in these countries
provide proof of the above assertion.
243. All of the above explains why for more than 15 years the
Sub-Commission and the Working Group have dealt with indigenous issues under an
item entitled
“Discrimination against indigenous peoples”, the
same title carried by the seminal study by Mr. Martínez Cobo published 16 years ago. Not much of substance has changed for indigenous peoples since
then. The basic
elements of their relationships with the non-indigenous
world remain unchanged.
244. Nor is it by chance that the Commission, on
the very date on which it established the Special Rapporteur’s mandate,
recognized (in impeccable diplomatic parlance) that “in various situations,
indigenous peoples are unable to enjoy their inalienable human rights and
fundamental freedoms” (Commission resolution 1989/34 of 6 March 1989, sixth
preambular paragraph).
IV. LOOKING AHEAD: CONCLUSIONS AND RECOMMENDATIONS
245. The Special Rapporteur has a number of elements to be duly
taken into account at the time of formulating conclusions and recommendations
in this final report. The most important are the following:
(a) His own mandate, as established in Commission on Human Rights
resolution 1988/56 and Economic and Social Council decision 1988/134;
(b)
The outline of the
study 53 submitted to the Working Group’s parent bodies
and explicitly or implicitly endorsed by them;
and
(c) The issues mentioned in the 1982 Martínez Cobo report as
possible questions to be elucidated in a study such as the one now being concluded.
246. As far as his mandate is concerned, it must be recalled
that the main purpose of the study is to analyse the potential utility of
treaties, agreements and other constructive arrangements between indigenous
peoples and Governments for the purpose of ensuring the promotion and
protection of the human rights and fundamental freedoms of those peoples.
247. His terms of reference also instructed the
Special Rapporteur to give “particular attention to the ongoing development of
universally relevant standards and the need to develop innovative,
forward-looking approaches to relationships between indigenous populations and Governments”. In doing
so, he was to take into account the inviolability of the sovereignty and
territorial integrity of States, as well as their socio-economic realities. The
mention of “the ongoing development of universally relevant standards”
obviously referred to the process of elaborating a draft declaration on the
rights of indigenous peoples, begun in the Working Group in 1985.
248. Regarding the draft declaration, the Special Rapporteur
has taken its provisions as a basic point of reference for his conclusions and
recommendations, notwithstanding the fact that the process of its final
adoption is still unfinished. He has taken very much into account the fact that its
text, as it now stands, was adopted after long years of deliberation both in
the Working Group and, for some time, in the Sub-Commission as well, with the
ample participation of both indigenous representatives and government
delegations.
249. As far as issues recognized in the 1988 outline as
elements to be addressed at the end of the study are concerned, the Special Rapporteur identified the role of treaties in European
expansion overseas (addressed in chapter III above); the contemporary
significance of treaties, agreements, and other constructive arrangements,
including questions relating to State succession, national recognition of such
instruments, and the views held by indigenous peoples on them. In addition, the outline identified three main sources that were to guide both the process of data
gathering and his conclusions and recommendations: public international law; the municipal law of
present-day States (including decisions by municipal courts); and indigenous
juridical views (in particular, on societal authority, treaties, and
treaty-making in general).
250. Special Rapporteur Martínez Cobo thought it convenient to
explore further issues as relevant as the areas covered today by the provisions
of treaties and other international legal instruments involving indigenous
peoples, whether or not they are observed, the consequences of their
implementation or lack thereof for indigenous peoples (an issue also addressed
in chapter III above), as well as the present status of those legal instruments
involving indigenous peoples.
251. At this point, the Special Rapporteur is
prepared to offer, first, some general conclusions applicable to the issues of
the study as a whole; and then to provide more specific conclusions regarding
the two main categories of currently existing situations in which indigenous
peoples live in multi•national societies: those in which treaties, agreements or other constructive arrangements exist, and those
lacking such juridical instruments.
252. The first general conclusion concerns the
issue of recognition of indigenous peoples’ right to their lands and their
resources, and to continue engaging, unmolested, in their traditional economic
activities on those lands. This is the paramount problem to be addressed in any
effort to establish a more solid, equitable and durable relationship between
the indigenous and non-indigenous sectors in multi•national societies. Owing
to their special relationship, spiritual and
material, with their lands, the Special Rapporteur believes that very little or
no progress can be made in this regard without tackling, solving and redressing
- in a way acceptable to the indigenous peoples concerned - the question of
their uninterrupted dispossession of this unique resource, vital to their lives
and survival.
253. The primacy of this issue is reflected not only in the
data gathered for the study and in the personal testimony heard by the Special
Rapporteur, but also in the debates held in the Working Group and other
international forums. The fact that more than a dozen articles of the draft
declaration deal with the question of land rights, and the concerns recently
expressed by Vatican
sources 54
on the violence and
discrimination exerted, up to the present,
against indigenous peoples to deprive them of their
lands, are also proof of its primacy.
254. Another conclusion, closely related to the
previous one, is that not only the land rights issue, but, in general, the
entire indigenous problematique and its
possible overall solution cannot be approached exclusively on the basis of juridical reasoning. The problems
confronted in a sizeable number of
multi•national States are essentially political in essence. Thus, considerable
political will is required from all the parties concerned, but in particular from the non-indigenous political
leadership of modern States, if these problems are to be resolved through
forward-looking new approaches. Juridical discussions and argumentation simply take too long, require copious resources (which the indigenous
side almost always lacks or has only in limited amounts), and in many cases are
prejudiced by centuries of sedimented rationale. In addition, the urgency of the existing problems simply leaves no room to
engage, at the threshold of the twenty•first century, in the type of
juridico-philosophical debates which Las Casas and Sepúlveda pursued in the
sixteenth century.
255. The Special Rapporteur is fully convinced
that the overall indigenous problematique today
is also ethical in nature. He
believes that humanity has contracted a debt with indigenous peoples because of the
historical misdeeds against them. Consequently, these must be redressed on
the basis of equity and historical justice. He
is also very much aware of the practical impossibility of taking the world back to the situation
existing at the beginning of the encounters between indigenous and non-indigenous
peoples five centuries ago. It is not possible to undo all
that has been done (both positive and negative) in this time•lapse, but this does
not negate the ethical imperative to undo (even at the expense, if need be, of
the straitjacket imposed by the unbending observance of the “rule of
[non-indigenous] law”) the wrongs done, both
spiritually and materially, to the indigenous
peoples.
256. The Special Rapporteur also harbours no doubts concerning
the much debated issue of the right to self-determination. Indigenous peoples, like all
peoples on Earth, are entitled to that inalienable right. Article 1 of the
Charter of the United Nations gives blanket recognition of this right to all
peoples (enshrining it as a principle of contemporary international law, as
does article 1 common to both International Covenants on Human Rights. This right is also expressly recognized for
indigenous peoples in article 3 of the draft declaration. In the view of the Special Rapporteur, any contradiction
that may emerge between the exercise of this right by indigenous peoples in
present-day conditions and the recognized right and duty of the States in which
they now live to protect their sovereignty and territorial integrity, should be
resolved by peaceful means, first and foremost negotiations; through adequate
conflict-resolution mechanisms (either existing or to be established);
preferably within the domestic jurisdiction; and always with the effective
participation of indigenous peoples. We
shall return to
this issue at a later stage in the
present chapter.
257. Regarding the question of whether or not indigenous
peoples can be considered as nations - in the sense of contemporary
international law - in the context of countries where some indigenous peoples
have been formally recognized as such (by non-indigenous nations at the
beginning of their contacts or at a later stage) through international legal
instruments, such as treaties, and other peoples/nations have not, the Special
Rapporteur believes it is pertinent to distinguish between those two
situations, although the final analysis may lead to the same conclusion.
258. In reviewing the cases he has selected for analysis the
Special Rapporteur has been led to conclude that the vast majority either describe situations of actual conflict between the
indigenous and non-indigenous sectors of society, or contain the seeds of a
conflict that could erupt unexpectedly because of issues that have been
simmering without appropriate solution for a long period, perhaps even centuries. The
developments in Oka (Québec)
in 1991, Chiapas (Mexico) in 1994 and in various communities in Australia in
1997 are examples of that potential.
259. Another general conclusion to be made is that, as
recognized in the draft United Nations declaration on the rights of indigenous
peoples submitted by the Working Group to the Sub-Commission and adopted by the latter, 55 all
the human rights and freedoms recognized in
international
instruments - either legally binding norms or
non-binding standards - accepted by the State in which they now live, are
applicable to indigenous peoples and
individuals
living within their borders. 56 This also applies to all rights
and freedoms recognized in the domestic legislation
of the State concerned, for all individuals and social groups under its jurisdiction. In
the view of
the Special Rapporteur, this is so
provided that the manner in which those rights and freedoms are recognized in
the instruments in question is consistent with indigenous customs, societal
institutions and legal traditions.
260. On the other hand, the Special Rapporteur is inclined to
argue in favour of the proposition that treaties/agreements or constructive
arrangements have the potential to become very important tools (because of
their consensual basis) for formally establishing and implementing not only the
rights and freedoms alluded to in the preceding paragraph, but also inalienable
ancestral rights, in particular land rights, in the specific context of a given society.
261. On the basis of a vast amount of documentation, the work
of the Working Group and oral testimony, the Special Rapporteur has reached the
conclusion that there is an almost unanimous opinion among geographically-dispersed
indigenous peoples that existing State mechanisms, either administrative or
judicial, are unable to satisfy their aspirations and hopes for redress.
262. He also has reasons to conclude that there
is a widespread desire on the indigenous side to establish (or re•establish) a
solid, new, and different kind of relationship, quite unlike the almost
constantly adversarial, often acrimonious relationship it has had until now
with the non-indigenous sector of society in the countries where they coexist. In the view of the indigenous peoples, this can only be achieved either by
the full implementation of the existing mutually agreed-upon legal documents
governing that relationship (and a common construction of their provisions), or
by new instruments negotiated with their full participation. This perception is shared by the appropriate government officials in a number of countries, including
Canada, New Zealand and Guatemala.
263. Finally, the Special Rapporteur is strongly convinced that
the process of negotiation and seeking consent inherent in treaty-making (in
the broadest sense) is the most suitable way not only of securing an effective
indigenous contribution to any effort towards the eventual recognition or
restitution of their rights and freedoms, but also of establishing much needed
practical mechanisms to facilitate the realization and implementation of their ancestral rights and those enshrined in national and international texts. It is thus the most appropriate way to approach conflict
resolution of indigenous issues at all levels with indigenous free and educated consent.
264. In his view, it is also the most suitable way for
Governments to implement effectively the appeal addressed to them by the 1993
Vienna World Conference on Human Rights to ensure the full and free
participation of indigenous peoples in all aspects of society, particularly in
matters of concern to them. 57
265. In the case of indigenous peoples who concluded treaties
or other legal instruments with the European settlers and/or their continuators
in the colonization process, the Special Rapporteur has not found any sound
legal argument to sustain the argument that they have lost their international
juridical status as nations/peoples. The treaty provisions which, according to the non-indigenous
version and construction, contain express renunciations by indigenous peoples
of their attributes as subjects of international law (particularly,
jurisdiction over their lands and unshared control of their political power and
institutions) are strongly challenged by most indigenous peoples whom he has consulted.
266. Their rejection of those provisions is based
either on the existence of invalid consent obtained by fraud and/or of induced
error as to the object and purpose of the compact, or on their ancestors’ total
lack of knowledge of the very existence of such stipulations in the compact, or
on the fact that their ancestral traditions and culture simply would not allow
them to relinquish such attributes (particularly those relating to lands and governance).
267. The State parties to those compacts • which
have benefited the most from gaining jurisdiction over former indigenous lands
- argue that those attributes were indeed relinquished, on the basis of
provisions of their domestic legislation and decisions of their domestic
courts, as well as on the realities of today’s world, and of the historical
developments leading to the present situation. However, the principle that no one can go
against his own acts goes back to ancient Rome and was valid as a general
principle of law at the time of the dispossession.
268. In this connection, the Special Rapporteur is very aware of the non-retroactivity of the 1969 Vienna Convention on the Law of Treaties, 58 which entered into force in 1980. A considerable number of States with indigenous peoples living within their current borders are parties to it. Nonetheless, he has also borne in mind that the text adopted in Vienna has to do not only with the development of new rules and concepts in international law, but also with the codification of those which had survived the test of time and were, in 1969, already part and parcel of international law, either as customary law or as positive law as embodied in a number of already existing bilateral and/or multilateral international instruments.
269. He believes that the content of article 27
of the Vienna Convention (“A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty ...”) was
already a rule of international law at the time when the process leading to the
disenfranchisement and dispossession of indigenous peoples’ sovereign
attributes was under way, despite treaties to the contrary concluded with them
in their capacity as recognized subjects of international law.
270. This leads to the issue of whether or not treaties and
other legal instruments concluded by the European settlers and their successors
with indigenous nations currently continue to be instruments with international
status in the light of international law.
271. The Special Rapporteur is of the opinion that those
instruments indeed maintain their original status and continue fully in effect,
and consequently are sources of rights and obligations for all the original
parties to them (or their successors), who shall implement their provisions in
good faith.
272. The legal reasoning supporting the above conclusion is
very simple and the Special Rapporteur is not breaking any new ground in this
respect. Treaties without an expiration date are to be considered as continuing
in effect until all the parties to them decide to terminate them, unless
otherwise established in the text of the instrument itself, or unless they are
duly declared to be null and void. This
is a notion that has been deeply ingrained in the conceptual
development, positive normativity and consistent jurisprudence of both
municipal and international law since Roman Law was at its zenith more than
five centuries ago, when modern European colonization began.
273. As a result of his research, the Special Rapporteur has
ample proof that indigenous peoples/nations who have entertained treaty
relationships with non-indigenous settlers and their
continuators strongly argue that those instruments not only continue to be
valid and applicable to their situation today but are a key element for their
survival as distinct peoples. All those consulted
- either directly in mass meetings with them or in their responses to the
Special Rapporteur’s questionnaire, or by direct or written testimony - have
clearly indicated their conviction that they indeed remain bound by the
provisions of the instruments that their ancestors, or they themselves,
concluded with the non-indigenous peoples.
274. Competent authorities in some countries, for example,
Canada and New Zealand, have also told the Special Rapporteur that their respective
Governments too consider that their treaties with
indigenous peoples remain fully valid and in effect (although, they differ
radically from their indigenous counterparts regarding construction of the
content of those treaties).
275. Nonetheless, the Special Rapporteur has been
able - in the course of his research and through in
situ observation, to ascertain a large number of obvious serious violations
of the legal obligations undertaken by State parties to those instruments (in
particular, to the so-called “historic treaties” and to legal commitments
involving indigenous lands) at practically all stages of the process of
domestication described in chapter III, particularly in the second half of the
nineteenth century.
276. Probably the most blatant case in point is
the United States federal Government’s taking of the Black Hills (in the
present•day state of South Dakota) from the Sioux Nation during the
final quarter of the nineteenth century. The lands which included the Black Hills had been
reserved for the
indigenous nation under provisions of the 1868 Fort
Laramie Treaty. 59 It is
worth
noting that in the course of the litigation prompted by this action, the
Indian
Claims Commission declared 60 that
“A more ripe and rank case of
dishonorable dealing will never, in all
probability, be found in our history”, and that both the Court of Claims, in
1979, and the Supreme Court of that
country 61
decided that the United States
Government had unconstitutionally
taken the Black Hills in violation of the United
States Constitution. However, United States legislation empowers Congress, as
the trustee over Indian lands, to dispose of the said property including its
transfer to the United States Government. Since the return of lands improperly taken by the federal Government is not within the province of
the courts but falls only within the authority of the Congress, the Supreme
Court limited itself to establishing a $17.5 million award (plus interest) for the Sioux. The indigenous party, interested not in
money but in the recovery of lands
possessing a very special spiritual value for the
Sioux, has refused to accept the monies, which remain undistributed in the
United States Treasury, according to the information available to the Special Rapporteur.
277. It is well known that fulfilment, in good faith, of legal
obligations that are not in contradiction with the Charter of the United Nations
(Art. 2.2) is considered one of the tenets of
present•day positive international law and one of the most important principles
ruling international relations, being, as it is, a peremptory norm of general
international law (jus cogens). Of course, article 26 of the Vienna Convention on the Law of Treaties has enshrined the
principle of pacta sunt servanda as the
cornerstone of the law of treaties, and mention has already been made above of
the importance of article 27 of that Convention.
278. It should also be borne in mind that the
draft United Nations declaration on the rights of indigenous peoples expresses
the same concept with particular emphasis. In
article 36, it establishes that “Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive arrangements
concluded with States or their successors, according to their original spirit
and intent, and to have States honour and respect such treaties, agreements and
other constructive arrangements”.
279. On the other hand, the unilateral termination of a treaty
or of any other international legally binding instrument, or the non-fulfilment
of the obligations contained in its provisions, has been and continues to be
unacceptable behaviour according to both the Law of Nations and more modern
international law. The same can be said with respect to the breaching of treaty provisions. All these actions determine the international responsibility
of the State involved. Many nations
went to war over this type of conduct by other parties
to mutually agreed upon compacts during the period (from the sixteenth to the
late nineteenth century) when the colonial expansion of the European settlers
and their successors was at its peak.
280. The Special Rapporteur has also concluded that a number of
current conflict situations concerning indigenous treaty/agreement issues have
to do with substantial differences in the construction of their provisions, in particular those relating to the object and purpose
of the compact in question. A relevant case is that of the Treaty of Waitangi. The Maaori and Pakeha constructions of it differ in matters as
crucial as the alleged “transfers” of governance/sovereignty powers and “land
title” to the
non-indigenous
settlers, as well as on the actual purpose of the compact itself. A
well•known scholar 62 has
described how the main British negotiator,
having been instructed to secure British
sovereignty over Maaori lands in order to exercise exclusive control over them
so as to proceed with peaceful colonization, deliberately blurred the meaning
of the term “sovereignty” and hid from the Maaori parties the fact that the
cession they were agreeing to would ultimately mean a significant loss of Maaori
power. Despite, the Maaori's
confident belief that the treaty had confirmed their right to property, even
the more important rights of rangatiratanga would
ultimately have to give way to Crown authority.
281. Account should be taken of the fact that indigenous practices of treaty-making were totally oral in nature and there were no written documents in this process. In addition, it was extremely difficult for the indigenous parties to follow all aspects of the negotiations fully through translators (who most likely were not always perfectly accurate), not to mention the fine print in the written version submitted to them, in an alien language, by the non-indigenous negotiators. Further, it was impossible for them, in most instances, to produce a written version of their understanding of the rights and obligations established in the instruments.
282. The Special Rapporteur considers it
important to stress that his research revealed that treaties, in particular,
concluded with indigenous nations, have frequently played a negative role with
respect to indigenous rights. On many
occasions they have been intended - by the non-indigenous side - to be used as tools to acquire “legitimate
title” to the indigenous lands by making the indigenous side formally
“extinguish” those and other rights as well. In
a document submitted personally by one respected
indigenous chief, 63 on
behalf of his nation, it is noted that treaties on occasion are used to force indigenous peoples to
bargain away their ancestral and treaty rights.
283. Finally, considering the very limited data available to
him, at this final stage of the study, with respect to treaties between States
affecting indigenous peoples as third parties, the Special Rapporteur can offer
only the preliminary conclusion that, according to all the evidence, there is
no acceptance by the affected indigenous parties of the obligations included in the provisions, 64
nor any participation by them in the
implementation, of such treaties.
284. Something must now be said with respect to the situation
of indigenous peoples who have never been formally recognized as nations by
means of negotiated formal international juridical instruments with
non-indigenous States. Particular attention should be paid to the issue of
whether or not they continue today to retain
their status as nations in the light of contemporary international law. The key question to be posed in this respect, in the view of the Special Rapporteur, is: by what means could they possibly have been legally deprived of such status, provided
their condition as nations was originally unequivocal and has not been
voluntarily relinquished?
285. The Special Rapporteur is of the opinion
that to link the determination of the “original” legal status of indigenous
peoples as nations (in the contemporary sense of international law) or as
“non-nations” to the single factor of whether or not they have formalized
relations with non-indigenous colonizing powers, is faulty. Not only does it go against the tenets
of
natural law, but it
is also illogical. The
fact that some of them did not have juridical relations with the colonial powers - in
many cases, during the early stages of a colonizing project, simply because the
newcomers did not happen to cross their path - does not appear sufficient
reason to establish such a drastic differentiation between their rights and the
rights of those who did.
286. It is important to recall that modern non-indigenous law
long ago dispelled the theory which advocated that the absence of formal
legal/political recognition by one sovereign entity
(or a group of them) could determine either the existence or the juridical
international status of another. The theory was thrown out as an aberration
vis•à•vis the principles of the sovereignty and equal
rights of all States. International entities, unrecognized
by some members of the international community, continue
nevertheless to exercise
their attributes as subjects of international law and in doing so may entertain
relations with all other interested international subjects. All that is required for this is that the entities possess
the necessary elements to be considered international subjects: territory,
population, an institutionalized form of government and, thus, the capacity to
conclude international agreements.
287. In addition, other non-juridical theories serving as the
basis for depriving indigenous peoples, in general, of their original
international status have also been discarded in the light of the new
perceptions and theoretical elaborations of modern international law. For example, the concept of terra nullius was formally put to rest by the
International Court
of Justice in its advisory opinion
in the Western Sahara case, 65
as well as by
the
well-known 1992 Mabo v. Queensland decision
66 handed
down by Australia's
High Court. Further, the international community has
widely repudiated the deprivation
of such a status by conquest and armed force. The provisions to
that effect in the Charter of the
Organization of American States and in Article 2.4 of the Charter of the United
Nations prove that contemporary international law rejects the notion that force
and conquest may bestow rights.
288. Hence, the Special Rapporteur is of the opinion that
should those indigenous people who never entered into formal juridical
relations, via treaties or otherwise, with non-indigenous powers (as did other
indigenous peoples living in the same territory) wish to claim for themselves
juridical status also as nations, it must be presumed until proven otherwise that
they continue to enjoy such status. Consequently,
the burden to prove otherwise falls on the party
challenging their status as nations. In any possible adjudication
of such an important issue, due attention should be given to an evaluation of
the merits of the juridical rationale advanced to support the argument that the
indigenous people in question have somehow lost their original status.
289. Having presented, in the first part of this chapter, the
conclusions of this study, the Special Rapporteur will proceed to his final
recommendations. As was the case when drafting his conclusions, the Special
Rapporteur deems it necessary to recall certain general points of reference -
advanced at earlier stages of his work - that should now guide the formulation
of these recommendations.
290. The Special Rapporteur considers it useful to recall that,
according to his mandate, this study was not to be limited to an analysis of
past legal instruments and their contemporary significance, nor to a review of
whether or not they are being currently implemented, regardless of the value
that such a review might have for both the present and the future.
291. If such an historical overview has been
given it is because the Special Rapporteur felt this would help to obtain a
well-informed foward•looking approach to the key issue, that is, the need to
evaluate the extent to which the conclusion of new treaties, agreements and
other constructive arrangements between indigenous populations and States may
contribute effectively to the development of more solid, lasting and equitable
bases for the relationships that will necessarily have to continue to exist
between indigenous populations and States.
292. It should also be borne in mind that the Special
Rapporteur has identified the ultimate purpose of his mandate as offering
elements towards the achievement, on a practical level, of the maximum
promotion and protection possible, both in domestic and international law, of
the rights of indigenous populations and especially of their human rights and
fundamental freedoms, 67 by means of creating new
juridical standards, negotiated and approved by all the interested parties, in
a process tending to contribute to the building of mutual trust 68
based on good faith, mutual
understanding of the other parties' vital interests, and deep commitment from
all of them to respect the eventual results of the negotiations. 69
293. At this juncture, it is useful to reiterate a point noted
earlier in this chapter (para. 257 above): most
of the cases/situations reviewed by the Special Rapporteur are
either actual conflict situations by definition, or have the potential to erupt
into a conflict situation at any time and under the most unexpected circumstances.
294. In this context, the need to encourage and nurture a
process of confidence-building can never be overemphasized. It is a process that requires the taking of
positive steps as well as the avoidance of actions that would exacerbate
existing conflictual situations. The first recommendation of the Special Rapporteur has to do with this much needed process.
295. Steps such as the one taken years ago by the then Prime
Minister of Australia, Robert Hawke, recognizing the misdeeds committed by the
first settlers against the
Aborigines, the recent admission by the Vatican concerning certain aspects of
the role played by the Catholic Church at various stages of the colonization of
Latin America and the 1993 Apology Bill passed by the United States Congress
with respect to Hawaii are positive developments in that direction. The Governments of those States should be encouraged to undertake effective follow-up to
those initial steps. Other
Governments in similar circumstances are called upon to be bold enough to
undertake like steps in their specific societal context.
296. By the same token, actions that predictably will aggravate
existing confrontational situations, or create new conflicts, should be
avoided, or should be the subject of an immediate sine die moratorium. Examples of what should not be done, in the
view of the Special Rapporteur, abound: forced
evictions (as in the case of the Navajo nation in Arizona), the creation of
conditions of duress for indigenous peoples to induce them to accept conditions
for negotiating (among others, the case of the Lubicon Cree in Alberta), the
fragmentation of indigenous nations to pit them against each other (as in cases
in the North Island of Aotearoa/New Zealand), the ignoring and bypassing of the
traditional authorities by promoting new authorities under non-indigenous
regulations (as in a number of cases in the
United States), the continuation of
“development projects” to the detriment of the indigenous habitat (as in the
case of the Bio-Bio River in Chile), attempts to launch major diversions to
redirect focus to individual rights as opposed to collective-communal rights
(as denounced by the Haudenosaunee Confederacy) and many others. All such actions should be carefully avoided.
297. This approach is consistent with one of the key traits of
the original approach of the Special Rapporteur to what was to be the thrust of
his conclusions and recommendations, namely to contribute to fostering new
relationships based on mutual recognition, harmony and cooperation, instead of
an attitude of ignoring the other party, confrontation and rejection.
298. Regarding recommendations to ascertain fully and channel
properly the recognized potential of treaties/agreements and other constructive
arrangements, as well as of
treaty-making (again in its broadest sense), as elements for the regulation of
more positive and less antagonistic future relationships between indigenous
peoples and States, due account should be taken of two processes already addressed
by the Special Rapporteur in the course of his work: (i)
the history of treaty relations between indigenous peoples
and States, especially the lessons to be drawn from an analysis of the process
of domestication in former European settler colonies (see chap. III above); and
(ii) the rationale behind ongoing negotiations and certain political processes
developing between States and indigenous peoples in various countries.
299. As far as the first of the two processes mentioned above
is concerned, the main lesson to be drawn from history concerns the problems of
treaty enforcement and implementation. The Special Rapporteur will offer a number of recommendations
on this key issue.
300. It is only too obvious that the problem in this area does
not lie in the lack of provisions but rather in the failure of the State party
to comply with those provisions. A case in point is that of the United
States, the country with the largest number (approximately 400) of
acknowledged treaties concluded with indigenous nations, most of them forced
into oblivion by unilateral actions on the part of either the federal
authorities or the Congress.
301. History demonstrates the existence of a wide array of
means at the disposal of State bodies, including the judiciary, to disregard
unilaterally treaty provisions that place a burden on the State, a disregard
that goes hand in hand with the observance of provisions that are favourable to
the State party.
302. Regarding the rationale of present-day
negotiations and other political contacts between States and indigenous
peoples, two observations need to be made. The
first has to do with what may be termed “non-negotiables”, for example
the principle of extinguishment of so-called native title as a condition for
the settlement of indigenous claims. It
remains to be seen to what
extent the existence of such “non-negotiables” - if imposed by State
negotiators - compromises the validity not only of the agreements already
reached but also of those to come. The
free consent of indigenous peoples, essential
to make these compacts legally sound, may be seriously jeopardized by this
particularly effective form of duress.
303. The second observation concerns the issue of
“self-government” and “autonomy” offered in certain cases as a substitute for
the full exercise of ancestral rights relating to governance, which are now to be extinguished. In order to avoid new problems in the
future, the Special Rapporteur feels the need to recommend that the possible
advantages and disadvantages of such regimes be carefully assessed by both
parties - but in particular by the indigenous side - in the light of the
history of treaty-making and treaty implementation and observance resulting
from past negotiations between indigenous nations and States.
304. For the same reasons, it is especially
important to assess fully (or to reassess), from the same point of reference,
the relevance and potential utility of the quasi-juridical category of
“constructive arrangements” for indigenous peoples still deprived of any formal
and consensual relationship with the States in which they now happen to live.
305. Regarding recommendations on yet another issue crucial to
the forward-looking aspects of this study, it must be noted that the Special
Rapporteur, at the beginning of his work, singled out three elements that
deserved investigation with respect to mechanisms of conflict resolution.
Those three elements were: (i) the actual capability of existing mechanisms to deal promptly and,
preferably, in a preventive manner with conflict situations; (ii) the
“sensitive issue” of national versus international jurisdiction; and (iii) the
manner in which the effective participation in these mechanisms of all parties
concerned - in particular that of indigenous peoples - is to be secured. 70
306. Earlier in the present report (para. 261) the Special
Rapporteur noted the generalized opinion that, in the light of the situation
endured by indigenous peoples today, the existing mechanisms, either
administrative or judicial, within non-indigenous spheres of government have
been incapable of solving their difficult predicament. This forces him to advance a number of recommendations on this subject.
307. He first recommends the establishment within States with a
sizeable indigenous population of an entirely new, special jurisdiction to deal exclusively with indigenous issues, independent of
existing governmental (central or otherwise) structures, although financed by
public funds, that will gradually replace the existing
bureaucratic/administrative government branches now in charge of those issues.
308. This special jurisdiction, in his view, should have four
distinct specialized branches (permanent and with adequate professional staffing):
(i) an advisory conflict-resolution body to which all
disputes, including those relating to treaty implementation, arising between
indigenous peoples and non-indigenous individuals, entities and institutions
(including government institutions) should be mandatorily submitted, and which
should be empowered to encourage and conduct negotiations between the
interested parties and to issue the recommendations considered pertinent to
resolve the controversy;
(ii) a body to draft, through negotiations with the indigenous
peoples concerned: (a) new juridical bilateral, consensual, legal instruments with the indigenous peoples interested
and (b) new legislation and other proposals to be submitted to the proper
legislative and administrative government branches in order gradually to create
a new institutionalized legal order applicable to all indigenous issues and
that accords with the needs of indigenous peoples;
(iii) a judicial collegiate body, to which all cases that after
a reasonable period of time have not been resolved through the recommendations
of the advisory body, should be mandatorily submitted. Such a body
should be empowered to adjudicate these cases and
should be capable of making its final decisions enforceable by making use of
the coercive power of the State;
(iv) an administrative branch in charge of all
logistical aspects of indigenous/non•indigenous relations.
309. The Special Rapporteur is fully aware of
many of the obstacles that such an innovative, far-reaching approach might encounter. To mention only one, it is not difficult to appreciate the many
vested interests that might be affected by the redundancy of the structures now
existing to deal with indigenous issues in many countries. Only strong political determination, particularly on the part of the leadership
of the non-indigenous sector of the society, can make this approach
viable. One other essential
element is also clear: the effective participation of indigenous peoples -
preferably on a
basis of equality with non-indigenous
people - in all four of the recommended branches is absolutely central to the
“philosophy” presiding over the Special Rapporteur's overall approach to this question.
310. It is obvious that the above is a mere sketch of the new
institutionality recommended. Much lies ahead in terms of filling in its quite visible
lacunae. While the Special
Rapporteur does not lack ideas on how to fill some of the
gaps, he has considered it wise to allow for the required fine-tuning to be
done at a later stage, around a negotiating
table, by the interested parties themselves in the different countries. The way in which such a negotiation process is organized and
conducted may well be the true litmus test eventually of the merits of his
recommendation and of the viability of the structure proposed in a given
socio-political context.
311. In advancing the recommendations set forth above, the
Special Rapporteur has benefited from the highly interesting ideas on the same
subject formulated in the final report (1996) of the Royal Commission on
Aboriginal Peoples established by the Government of Canada. 71
312. While it is generally held that contentious issues arising
from treaties or constructive arrangements involving indigenous peoples should
be discussed in the domestic realm, the international dimension of the treaty problematique nevertheless warrants proper consideration.
313. A crucial question relates to the desirability of an
international adjudication mechanism to handle claims or complaints from
indigenous peoples, in particular those arising from treaties and constructive
arrangements with an international status.
314. The Special Rapporteur is quite familiar with the
reticence expressed time and again, by States towards the question of taking
these issues back to open discussion and decision-making by international forums. In fact,
he might even agree with them that for certain issues (for
example, disputes not related to treaty implementation and observance) it would
be more productive to keep their review and decision exclusively within
domestic jurisdiction until this is completely
exhausted.
315. However, he is of the opinion that one should not dismiss
outright the notion of possible benefits to be reaped from the establishment of
an international body (for example, the proposed permanent forum of indigenous
peoples) that, under certain circumstances, might be empowered - with the
previous blanket acquiescence, or acquiescence on an ad hoc basis, of the State
concerned - to take charge of final decision in a dispute between the
indigenous peoples living within the borders of a modern State and
non-indigenous institutions,
including State institutions.
316. At any rate, the Special Rapporteur recommends that a United Nations-sponsored workshop be convened, at the earliest possible date and within the framework of the International Decade of the World's Indigenous People, to open an educated discussion on the possible merits and demerits of the establishment of such an international body.
317. One last point on the subject: with
the growing international concern about all human rights and
related developments, one element appears very clear in the mind of the Special
Rapporteur: the more effective and developed the
national mechanisms for conflict resolution on indigenous issues are, the less
need there will be for establishing an international body for that purpose. The
opposite is also true: the
non-existence, malfunctioning,
anti-indigenous discriminatory approach or
ineffectiveness of those national institutions will provide more valid
arguments for international options.
This may be one of the strongest
arguments possible for the establishment (or strengthening) of proper, effective internal
channels for the implementation/observance of indigenous rights and conflict
resolution of indigenous-related issues.
318. Another recommendation which it seems timely to address to
State institutions empowered to deal with indigenous issues is that, in the
decision-making process on issues of interest to indigenous peoples, they
should apply and construct (or continue to do so) the provisions of national legislation and international standards and
instruments in the most favourable way for indigenous peoples, particularly, in
cases relating to treaty rights. In all cases of treaty/agreement/constructive
arrangement relationships, the interpretation of the indigenous party of the
provisions of those instruments should be accorded equal value with
non-indigenous interpretation of the same provisions.
319. The Special Rapporteur also recommends the
fullest possible implementation in good faith of the provisions of
treaties/agreements between indigenous peoples and States, where they exist,
from the perspective of seeking both justice
and reconciliation. In the event that the very existence (or present•day validity) of a treaty
becomes a matter of dispute, a formal recognition of that instrument as a legal
point of reference in the State's relations with the peoples concerned would
contribute greatly to a process of confidence-building that may bring substantial benefits. In
this context, the completion of the ratification process of draft
treaties/agreements already fully negotiated with indigenous people is strongly
recommended by the Special Rapporteur.
320. In the case of obligations established in bilateral or
multilateral treaties concluded by States - to which indigenous peoples are
third parties - that may affect those peoples, the Special Rapporteur
recommends that the State parties to such instruments seek the free and
educated acquiescence of the indigenous parties before attempting to enforce
those obligations.
321. The Special Rapporteur further recommends State
authorities not to take up or continue to engage in development projects that
may impair the environment of indigenous lands and/or adversely affect their
traditional economic activities, religious ceremonies or cultural heritage,
without previously commissioning the appropriate ecological studies to
determine the actual negative impact those projects will have.
322. Finally, in connection with the indigenous
affairs•related activities of the Office of the United Nations High
Commissioner for Human Rights, the Special Rapporteur recommends:
(a) A substantial permanent increase in the staff assigned to
carry out such activities;
(b) The establishment, at the earliest possible date, of a
section within the United Nations Treaty Registry with responsibility for
locating, compiling, registering, numbering and publishing all treaties
concluded between indigenous peoples and States. Due
attention should be given in this endeavour to securing
access to the indigenous oral version of the instruments in question;
(c) The convening, in the framework of the Programme of Action
for the International Decade of the World's Indigenous People and at the
earliest possible date, of three workshops on: the
establishment of an international conflict-resolution
mechanism on indigenous issues; modalities for redressing the effects of the
historical process of land dispossession suffered by indigenous peoples; and
the implementation/observance of indigenous treaty rights;
(d) Promoting the creation of an Internet page exclusively
dedicated to indigenous issues and the United Nations activities relating to
indigenous interests.
Notes
1. E/CN.4/Sub.2/1986/7/Add.4
(also available as United Nations publication, Sales No. E.86.XIV.3).
2. Ibid., paras. 388•392.
3. E/CN.4/Sub.2/1987/22, annex I (Recommendations to the
Sub•Commission), Recommendation 3.
4.E/CN.4/Sub.2/1988/24/Add.1.
5.E/CN.4/Sub.2/1991/33.
6.E/CN.4/Sub.2/1992/32, E/CN.4/Sub.2/1995/27 and E/CN.4/Sub.2/1996/23.
7.E/CN.4/Sub.2/1988/24, Add.1, paras.
21•23.
8.E/CN.4/Sub.2/1991/33, paras. 92•93, 106•107, and 110•114.
9. E/CN.4/Sub.2/1992/32,
para. 169.
10. E/CN.4/Sub.2/1988/24/Add.1,
para. 12; E/CN.4/Sub.2/1991/33, para. 92.
11. E/CN.4/Sub.2/1991/33, paras. 95•100; for implementation,
see E/CN.4/Sub.2/1995/27, paras. 48•129. It
must be mentioned that the language barrier made it impossible for the Special Rapporteur to review the
scanty information available to him in the case of the indigenous peoples of Siberia.
12. E/CN.4/Sub.2/1992/32,
para. 326.
13.1155 United Nations, Treaty Series,
vol. 1155, No. 331, article 2 1 (a).
14. E/CN.4/Sub.2/1992/32,
para. 332.
15. E/CN.4/Sub.2/1995/27,
paras. 288, 293.
16. E/CN.4/Sub.2/1995/27,
para. 314.
17. E/CN.4/Sub.2/1992/32, paras. 367•370.
18. These were: the
1494 Treaty of Tordesillas, the 1713 Treaty
of Utrecht, the 1751 Border Treaty between Sweden/Finland and
Norway/Denmark, the 1763 Treaty of Paris, the 1794 Jay Treaty, the 1819
Adam-Onis Treaty, the
1848 Treaty of Guadelupe-Hidalgo,
the 1867 Purchase of Alaska, the 1916 Migratory Birds Convention and the 1989 ILO
Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent
Countries (see E/CN.4/Sub.2/1992/32, paras.
363-390).
19. Further
review of issues relating to this type of consensual compact will be made in
chapter II.B of this report.
20. E/CN.4/Sub.2/1995/27, paras. 140•171.
21.E.g. Sharon Venne, “Understanding Treaty
Six: indigenous perspective”, in
Aboriginal
and Treaty Rights in Canada (M.
Asch Ed.) (Vancouver: University
of British Columbia Press, 1996), pp. 173-204; Treaty Seven Elders and Tribal
Council, The Original Spirit and Intent of
Treaty Seven, Montreal and Kingston, McGill-Queen’s University Press, 1996.
22. E/CN.4/Sub.2/1991/33, para. 98; for implementation, see
E/CN.4/Sub.2/1995/27, paras. 48•129. Compare also infra,
chapter II below.
23. E/CN.4/1995/27,
para. 126.
24. E/CN.4/Sub.2/1995/27,
para. 116.
25.
Sub•Commission resolution 1994/4 of 19 August 1994.
26.E/CN.4/Sub.2/1995/27, paras. 116, 128.
27. E/CN.4/Sub.2/1995/27,
para. 307.
28.
Study of the Problem of Discrimination Against Indigenous
Populations, vol. V: “Conclusions,
proposals and recommendations”,
document
E/CN.4/Sub.2/1986/7/Add.4, paras. 388•392.
29. It should
be noted, however, that the Special Rapporteur has from the beginning
repeatedly deplored (see for example, E/CN.4/Sub.2/1995/27, para. 32.), the
very limited response to his questionnaire from indigenous
nations/organizations, a situation which improved considerably after 1995 as a
result of the efforts by some organizations, such as the International Indian
Treaty Council. In addition, he has also had to contend
with the widespread lack of response from
Governments concerned to their version of the questionnaire. Of the very few replies received, some were of a merely general or formal nature, with little substance.
30.Cf. E/CN.4/Sub.2/1992/32, para. 392.
31. E/CN.4/Sub.2/1991/33,
para. 89.
32. E/CN.4/Sub.2/1992/32,
paras. 32, 40.
33.Cf. E/CN.4/Sub.2/1995/27, para. 336.
34. E/CN.4/Sub.2/1995/27,
para. 133.
35. He had nevertheless identified a small number of documents
relating to situations in South America which “date back to early republican
days in at least two countries”; see E/CN.4/Sub.2/1991/33, paras. 103•104.
36. E/CN.4/Sub.2/1996/23, paras. 145•170. In February 1998,
Mapuche authorities in their lands in the present•day Chilean province of
Cautín solemnly submitted copious documentation relating to a number of those parlamentos to the Special Rapporteur. Until June 1998, only an initial review of that documentation had been possible.
37. E/CN.4/Sub.2/1992/32, paras. 138•139; see also
E/CN.4/Sub.2/1995/27, para.
130.
38.E/CN.4/Sub.2/1995/27, paras. 176•201, 202•237 and 238•249.
39.E/CN.4/Sub.2/1996/23, paras. 27•79, 81•115 and 145•170.
40.E.g. Sébastien
Grammond, Les traités entre l'Etat canadien et
les peuples autochtones, Cowansville, Québec, Editions Yvon Blais,
1995; Francis P. Prucha, American Indian Treaties, The History of a
Political Anomaly, Berkeley, University of California Press, 1994.
41.Report
of the Royal Commission on Aboriginal Peoples, vol. 2, “Restructuring the
Relationship”, Part One, Recommendation 2.2.2, Ottawa, Minister of Supply and
Services, 1996, p. 49.
42.E/CN.4/Sub.2/1995/27, paras. 130•311; E/CN.4/Sub.2/1996/23, paras. 27•209.
43. E/CN.4/Sub.2/1991/33,
para. 96.
44. E/CN.4/Sub.2/1992/32,
para. 347.
45. E/CN.4/Sub.2/1996/23, paras. 171•196.
46. E/CN.4/Sub.2/1996/23, paras. 117•125 and 126•144.
47.Cf. E/CN.4/Sub.2/1992/32, para. 338.
48. E/CN.4/Sub.2/1996/23, paras. 85•115. In
the view of the Special Rapporteur, the fact that a non•State negotiator (the Canadian province
of Québec) later became a “party” to this instrument cannot be construed as
depriving it of its basic international standing. On
the other hand,
indigenous parties to it had never ceded
their sovereign attributes before the existence of this Convention, and their
participation in this treaty•making process cannot and should not be considered
as an action depriving them of such attributes and original status.
49. By the same token, the Special Rapporteur wishes to
correct an error of generalization he made in paragraph 87 of his third
progress report (E/CN.4/Sub.2/1996/23), regarding the Déné and Métis of the
Mackenzie Valley (Northwest Territories).
50. E/CN.4/Sub.2/1992/32,
para. 359.
51.Cf. E/CN.4/Sub.2/1995/27, para. 225.
52.Commission on Human Rights
resolution 1988/56, para. 2, and Economic and Social Council decision 1988/134.
53.E/CN.4/Sub.2/1988/24/Add.1.
54. Pontificio Consejo “Justicia y Paz”, Para una Mejor Distribución de la Tierra: El reto de la reforma agraria, Libreria Editrice Vaticana, Vatican City, 1997, para. 55.
55.
Sub•Commission resolution 1994/45 of 26 August 1994, annex. 56.See
article 1 of the draft declaration.
57.
Vienna Declaration and
Programme of Action adopted by the World Conference on Human Rights on 25 June
1993 (A/CONF.157/23), Part II, para. 31.
58. Article 4
of the Convention. See note
13 above.
59.U.S. Stat. 635 (1868).
60.207 Ct. Cl. at 241, 518 F.2d at 1302
(1975).
61. United States v. Sioux Nation of Indians, 448
U.S. 371 (1980).
62. Claudia
Orange, The Treaty of Waitangi, Allen &
Unwin, Wellington, 1987, pp. 32-33 and 122.
63. Chief
Oren Lyons of the Haudenosaunee Confederacy. The document was submitted
personally to the Special Rapporteur in February 1998.
64. Article
35 of the Vienna Convention on the Law of Treaties makes such an acceptance
indispensable for an obligation to be established for third parties to any treaty.
65. Western Sahara, Advisory Opinion of 16 October
1975: I.C.J. Reports
1975, p. 12.
66.175 C.L.R. 1 (1992).
67. E/CN.4/Sub.2/1988/24/Add.1,
para. 10, and E/CN.4/Sub.2/1991/33, para. 71.
68. E/CN.4/Sub.2/1988/24/Add.1,
para. 14.
69. E/CN.4/Sub.2/1991/33,
para. 85.
70. E/CN.4/Sub.2/1991/33,
para. 118.
71. Report of the Royal
Commission on Aboriginal Peoples, vol. 2, “Restructuring the relationship”, Part One, Ottawa, Minister of
Supply and Services, 1996.
•••••
