Handbook of Indigenous Peoples' Rights

Damien Short, Corinne Lennox, Damien Short, Corinne Lennox

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781136313851
• Edition: 1
• Topic: Law
• Subtopic: Human Rights
• Index: Law

This handbook will be a comprehensive interdisciplinary overview of indigenous peoples' rights. Chapters by experts in the field will examine legal, philosophical, sociological and political issues, addressing a wide range of themes at the heart of debates on the rights of indigenous peoples. The book will address not only the major questions, such as 'who are indigenous peoples? What is distinctive about their rights? How are their rights constructed and protected? What is the relationship between national indigenous rights regimes and international norms? but also themes such as culture, identity, genocide, globalization and development, rights institutionalization and the environment.

1 Introduction

Corinne Lennox and Damien Short

DOI: 10.4324/9780203119235-1

Introduction

This book is about the rights of indigenous peoples and explores the role of different actors in shaping these rights and the many challenges of implementation. The analysis includes a broad range of existing and emerging rights, but focuses principally on the rights framework established by the United Nations (UN) Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007 by the UN General Assembly. It took more than 20 years to adopt that Declaration, from initial drafts to final state approval; this includes a post-script issued by the four states—the USA, Canada, New Zealand and Australia—that initially voted against the UNDRIP and then issued statements in support of the standard. In September 2014 states reaffirmed their commitment to the UNDRIP at the World Conference on Indigenous Peoples. The outcome document of that World Conference is considered an operational tool for supporting the realization of the UNDRIP’s provisions in the years ahead.

Debates at the World Conference highlighted that the gains made by indigenous leaders over the more than 20 years of negotiating the UNDRIP remain fragile. Indigenous leaders had mixed feelings about the outcome of the conference, pleased that the norms of the UNDRIP were recognized but disappointed that key concerns, like the actions of extractive industries or militarization of indigenous territories, were not adequately addressed (IWGIA 2014). Notably, the outcome document of the World Conference is missing the cornerstone right recognized in the UNDRIP: the right to self-determination. In contrast, the right to free, prior and informed consent (FPIC) to actions affecting indigenous peoples and their land is emphasized in the text, suggesting that acceptance of this norm has advanced further even in the years since the UNDRIP was adopted.

These outcomes show that indigenous peoples’ rights are dynamic and contested. Although the UNDRIP is a widely accepted standard of indigenous rights, many of its provisions remain unimplemented, whilst the scope of others is subject to scrutiny. This poses many challenges for advocates of indigenous rights and for states and other actors with responsibilities to respect, protect and fulfil those rights.

Indigenous peoples around the world continue to fight daily battles to secure the most basic of these rights including non-discrimination, eradication of poverty, respect for their land rights and protection of their cultural life. Just as indigenous rights are changing, so too are indigenous identities and lived experiences. Roughly half of the world’s indigenous peoples now live in urban or peri-urban regions, having either migrated away from ancestral territories or being part of multi-generational urban communities. Those groups that still reside in ancestral regions face increasing threats of land-grabbing, extractive industry encroachment, the effects of climate change and pollution, and ongoing exclusion from basic human rights such as clean water, health care, decent work and education.

Given this landscape of issues, this edited volume has a tremendous task to give readers an insight into some of these dynamics. Even with the generous parameters of a ‘Handbook’, populated with many chapters, we were challenged as editors to narrow our focus but still give attention to major points of contention in the field of indigenous rights. In this introduction, we try to offer an overview of the book’s content against the backdrop of what we see as some of the major issues ahead in implementing the UNDRIP.

Indigeneity

The question of which individuals or groups constitute indigenous peoples is still a matter of some contention. It is important because it determines who can claim rights on this basis. In the absence of any definition in international law, states, communities and international organizations have drawn upon a number of objective and subjective criteria. A principal criterion is self-identification, by which communities themselves determine whether to assert that they are indigenous peoples. The UN has relied on definitions put forward by two key experts: José Martínez Cobo (1987) and Erica-Irene Daes (2001), who both predicate indigeneity on ancestral links to territory and particular cultural and religious distinctiveness. It is not even entirely clear how many people in the world claim indigenous identity: the figure of 370m. people is put forward by the UN Permanent Forum on Indigenous Issues (PFII 2009), while the World Bank adopts the figure of 300m. (World Bank 2011, 1). The reported number of states with indigenous peoples ranges from 70 (PFII n.d.) to 90 (PFII 2009); about 80 per cent of indigenous peoples reside in Asia (World Bank 2011, 1).

The authors in this volume offer various reflections on the dilemmas of identity and indigeneity. As Paradies outlines in his contribution, the spectre of essentialism is an important problem, particularly as the lived experiences of indigenous peoples are ever more diverse due to forces such as migration, globalization and improved socio-economic status. Indigenous persons have multiple identities and rights claims that intersect, for example, along lines of gender, sexual orientation, age, disability and other markers. To some extent this is reflected in the UNDRIP’s provisions, such as the open-ended non-discrimination clause in article 2 and the special protection that is called for in respect of the rights of ‘indigenous elders, women, youth, children and persons with disabilities’ (articles 21 and 22).

Much also depends on state willingness to legally recognize communities as indigenous. As Sapignoli details in her chapter, the first barrier to making rights claims in Botswana has been official recognition as such by the state. Although international human rights bodies (UN HRC 1994; UN CERD 1997) have declared that recognition is a matter of fact, based on objective criteria, restrictive domestic law often still limits the extent to which groups can claim rights that are recognized in international law for indigenous peoples.

While the state has the power to accord legal recognition as indigenous, Gover’s chapter investigates the tension between the state position and the rights of indigenous groups to determine their own membership. This tension centres on the group’s right to exclude individuals from claiming membership and the state’s obligation to protect the relevant human rights of the individual making the claim to belong to the indigenous group. She explores a ‘right-based theory of indigenous membership’ and finds that international human rights law has been largely ineffective at regulating the more contentious aspects of this membership problem. This contrasts with Paradies’s discussion of the ‘tyranny of authenticity’ that permeates the indigenous discourse and which threatens to exclude individuals who do not fit the strict legal or moral criteria set for membership.

These debates bring us back to the weakness of some of the original criteria for recognition of indigenous identity. The distinction between indigenous peoples and other ethnic, religious and linguistic minorities is often a matter of degree than of type, with the identities existing along a continuum (Daes and Eide 2000). Some groups have been known to try to claim indigenous status in the hope that it will afford access to specific rights, usually in relation to land or resources. As Will Kymlicka explored in Multicultural Odysseys (2007), the international human rights framework has afforded rather more rights protection to indigenous peoples than to other territorially based minorities who may face similar threats to land or culture and have similar self-determination goals. In the face of competing claims to resources, political authority and even sovereignty, the question remains as to whether the principle of ‘self-identification’ is the most adequate to deal with these issues.

In the book we have not prescribed any particular terminology for ‘indigenous peoples’. Authors have variously used terms such as ‘aboriginal’, ‘indigenous’, or ‘first nations’, sometimes also employing capital letters (e.g. Indigenous). Roy’s chapter on Asia notes the regional variations used nationally, such as ‘Scheduled Tribes’ in India. This pluralism demonstrates that nomenclature matters very much in the indigenous rights discourse, where rights have been ascribed or denied based on accepted terms, most notably perhaps in the acceptance of an ‘s’ on ‘peoples’ and the corresponding right to self-determination of peoples in international law.

Indigenous peoples' rights

All the chapters in this book are an examination in some way of indigenous peoples’ rights. The authors explore how these rights have been exercised and violated, how they have changed over time, how they are monitored by international mechanisms and implemented by states and how they have been shaped by indigenous peoples’ agency.

Many authors are also critical of the rights framework and challenge its limitations, its omissions and its roots in the Western, liberal paradigm. Indigenous peoples themselves have customary law and legal traditions that do not always sit well within the European ‘law of nations’ that has constrained and usurped their sovereignty. Paul Patton’s chapter in this volume recalls James Tully’s work: where treaties were negotiated between colonizers and indigenous peoples, they did so on the basis of mutual respect for sovereignty. For the most part, indigenous peoples have had to accept foreign constructs of law to claim recognition of their sovereignty. Fan’s chapter on indigenous knowledge also shows how the dominant legal system fails to accommodate indigenous systems of knowledge, imposing patents, property rights, copyright laws and other material concepts on what are non-material collective goods in indigenous societies. This imposition of ‘commodification’ on indigenous peoples of their land and resources in the interests of securing the rights of global capital is further lamented by Barros in his chapter discussing so-called benefit-sharing in the context of Chilean exploitation of the resource-rich Atacama Desert. A feminist critique of the limitations of (international) human rights law for indigenous women is offered by both Kuokkanen and Suzack in their chapters. Kuokkanen’s chapter on the UNDRIP uses the Zapatista Women’s Revolutionary Law, developed by indigenous women directly, to highlight the gaps in the international indigenous rights framework, particularly with respect to human rights violations in the private sphere. Suzack examines the way in which conventional legal paradigms and structures serve to reinforce intersecting discrimination and inequalities faced by indigenous women, drawing examples from Canada and the USA; she advocates a transitional justice perspective that can better ‘grant women access to voice, agency, and experience’ in claiming their rights and emancipation.

Using the framework of ‘rights’ to examine contemporary issues of indigenous peoples’ lives does have its limitations, but rights have also become a major aspect of contestation and restitution in indigenous peoples’ interactions with the state and other communities. On the international stage, indigenous leaders have been highly successful in using the frame of ‘human rights’ to delineate various inviolable obligations of the state towards indigenous peoples. Practices that were once a normal part of state–indigenous relations, such as forced assimilation and dispossession of land, have been recognized in retrospect as gross violations of human rights and, in some cases, as genocidal (Short 2010). Normatively, rights have proven to be a powerful tool of censure of state practice, even whilst failing to be an adequate tool for norm compliance.

It is in the domain of collective rights that indigenous peoples have perhaps had the most radical impact on the contemporary human rights framework. Collective ownership of land and natural resources is a dominant feature of indigenous customary laws. Many states have rejected the premise that collective rights (e.g. to land and resources) can constitute part of the human rights of indigenous peoples. They argue that human rights can only be recognized for individuals and express concerns that collective rights might be used to trump individual human rights.

It was thus for decades that indigenous peoples were excluded from the right to self-determination. This apparent principled stance on preserving individual human rights also serves to maintain the current international order and territorial integrity of existing states by proscribing self-determination for all but a limited set of historical conditions, in particular, decolonization. Indigenous leaders have ably argued that, given their own history of colonization, the right to self-determination should extend to their circumstances. Through a long process of socialization and persuasion, states have broadly come to accept this argument with the important caveat that only internal self-determination will be recognized, within existing state borders. As Lightfoot shows in her chapter, this fell short of the expectations of many indigenous leaders negotiating the UNDRIP, in which the right to self-determination is accepted but qualified by article 41.1, safeguarding ‘the territorial integrity or political unity of sovereign and independent States’.

It is important to note also that rights claims within indigenous communities are also contested. Different groups within broader communities can have different and sometimes conflicting or competing rights objectives. This point is highlighted by Lewis in her chapter on business and indigenous rights, citing cases where individual interests in benefit-sharing from business investment, such as jobs, has clashed with other interests in land and resource preservation. Gover’s chapter also discusses the case of Sandra Lovelace in Canada, whose struggle for, inter alia, gender equality in Canada’s Indian Act provisions contravened other interests in preserving the Indian Act despite its obvious discrimination against indigenous women.

Another limitation of the rights framework for indigenous peoples is that there are many practical obstacles to making rights claims in both domestic and international law. Although there have been many landmark cases at the international or regional level deciding in favour of indigenous applicants, the compliance record is very low. Morel’s chapter provides further details on the perils of strategic litigation and the long view on implementation challenges. Sieder discusses the wide ratification in Latin America of International Labour Organization (ILO) Convention 169 Concerning Indigenous and Tribal Peoples, noting that many states have not adopted domestic implementing legislation. Even at the national level, indigenous peoples can face highly protracted legal processes and impunity for rights violations. Lewis gives the example of the ‘corporate veil’, whereby international companies operating in indigenous territories can hide behind subsidiary businesses and thus avoid legal sanction of their harmful actions.

International law and mechanisms for indigenous rights

Since the first UN conference on indigenous peoples was held in 1977, on the topic of discrimination, there has been an extraordinary development of international law and mechanisms created to protect indigenous peoples’ rights. Several of the chapters review these developments in more detail, but some important points for understanding this regime and its future will be...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• List of Tables
• List of Contributors
• Acknowledgements
• Abbreviations
• 1 Introduction
• Part I Indigeneity
• Part II Right and governance
• Part III Indigenous women's rights
• Part IV Development and the environment
• Part V Mobilization for indigenous peoples' rights
• Part VI Justice and reparations
• Part VII International monitoring and mechanisms for indigenous peoples' rights
• Part VIII Regional case studies
• Index