The Concept of Indigenous Peoples - Introduction and Background for the Thesis

PART I Introduction and Background for the Thesis

1.1 Introduction

1.1.2 The Concept of Indigenous Peoples

As there is no universal definition of indigenous peoples, this thesis will only examine some of the characteristics of the many existing definitions. Indigenous peoples³² are often referred to as the disadvantaged descendants of the peoples that

28 Article 3 of the UNDRIP

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

29 See more for example: Mattias Åhrén, Martin Scheinin, John B. Henriksen. The Nordic Sami Convention: International Human Rights, Self-Determination and other Central ProvisionsGáldu Čála – Journal of Indigenous Peoples Rights N o. 3/2007.

30 See more Young Iris Marion, Hybrid Democracy: Iroquois Federalism and the Postcolonial project in Ivison, Patton and Sanders, Political Thoery and the Rights of Indigenous Peoples. Cambridge University Press, 2007, 248- 253.

31 For example, the country report by CERD the Committee on the Elimination of the Racial Discrimination from 2009. http://formin.finland.fi/public/default.aspx?contentid=67849

32 Also: Indigenous peoples are people, communities, and nations who claim a historical continuity and cultural affinity with societies predating contact with Western culture. These peoples consider their local cultures to be distinctly separate from contemporary Westernized cultures, and many continue to assert their sovereignty and right to self-determination.

inhabited a territory prior to colonisation or the formation of the existing state.

The term “indigenous” is defined by characteristics that relate to the identity of a particular people in a particular area, and that culturally distinguishes them from other people or peoples.³³ Today many indigenous peoples are excluded from society and are often even deprived of their rights as equal citizens of a state. On the other hand, indigenous peoples are determined to preserve, develop and transmit their ancestral territories and ethnic identity to future generations. It should be noted that the self-identification of an indigenous individual and the acceptance, as such, by a group is an essential component of indigenous peoples’ sense of identity. The problem related to group-acceptance will be further evaluated below. Indigenous peoples’ continued existence as a people is closely connected to their possibility of influencing their own fate and in living in accordance with their own legal tradi-tions and cultural characteristics.³⁴

Later on, the personal meaning of indigenous identity, as well as an evaluation of the estimated number of indigenous peoples are provided. Today, at least 350 million people globally are considered to be indigenous. Most of these peoples live in remote areas of the world. Indigenous people are divided into, at least, 5000 groups of peoples, ranging from the forest peoples of the Amazon to the tribal peoples of India to the Inuit of the Arctic and the Aborigines of Australia. Often, they inhabit land that is rich in minerals and natural resources. Indigenous peoples face serious difficulties, such as the constant threat of territorial invasion and mur-der, the plundering of their resources, cultural and legal discrimination, as well as a lack of recognition of their own institutions.³⁵ A comparison to the situation of the Nordic countries indicates that the Saami way of life has become close to that of the dominant society. Overall human rights are secured for all Nordic citizens and mainly the rights of the Saami to traditionally occupied lands and waters, are those which lack legal recognition and protection.

Indigenous peoples often strongly resist being defined by others. They many times state that they wish to assert their inherent right to define who they are and do not approve of any other definition. This right is recognised by ILO Convention No. 169:

‘Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.’³⁶

There appear to be a variety of definitions, among different scholars and institu-tions, concerning indigenous peoples. A distinction is drawn between the history and

33 Indigenous peoples - who are they? http://www.iwgia.org/sw641.asp Accessed 21.2.2011.

34 ibid.

35 ibid.

36 Article 1 of the ILO Convention No.169.

definition of the indigenous peoples of the New World and the Old World. Different definitions or approaches are presented here. However, it must be remembered that, in the context of ILO Convention No. 169, one may only speak of the peoples at whom this specific international convention is aimed at protecting, especially those living in the territory of a state party to the Convention.

The Special Rapporteur of the UN Economic and Social Council Sub-Commission on Prevention of Discrimination and Protection of Minorities defines indigenous peoples as follows:

Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that have developed on their territories, consider themselves distinct from other sectors of the societies now prevailing n those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. ³⁷

However, some anthropologists believe that this definition of indigenous communi-ties reflects the historical context of the New World (North and South America and Australia). In fact, all three components of the definition are derived from that his-torical situation. Firstly according to Sahai, it is, for example, in the New World that

“[i]ndigenous communities, peoples and nations” had a “historical continuity with pre-invasion and pre-colonial societies that developed in their territories.” Secondly, it was also in the New World where indigenous peoples “consider[ed] themselves [to be] distinct from other sectors of societies now prevailing in those territories or parts of them.” Thirdly, indigenous peoples presently form “non- dominant sectors of society and are determined to preserve, develop and transmit […] their ancestral territories and their ethnic identity [, to their future generations,] as the basis of their continued existence as people[s] in accordance with their own cultural patterns, social institutions and legal system.”³⁸

Instead of offering a definition, Article 33 of the United Nations Declaration on the Rights of Indigenous Peoples underlines the importance of self-identification and indigenous peoples ability to identify themselves as, indeed, indigenous. It states:

37 UN ECOSOC 1986

38 See more: Suman Sahai, the Challenge to indigenous peoples and indigenous culture: An Asian perspective. At http://

www.genecampaign.org/Publication/Article/IK/Challenge-IP-IC.pdf. Accessed 16.5.2011.

1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.

2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.³⁹ When the Asian Development Bank (ADB) developed a working definition of indig-enous peoples to be utilized in Bank operations, several aspects were considered. A starting point was defining indigenous peoples on the basis of displayed characteristics.

In this context, two significant characteristics were (i) the descent from population groups present in a given area, most often before modern states or territories were created and before modern borders were defined, and (ii) the maintenance of cultural and social identities, and social, economic, cultural, and political institutions separate from mainstream or dominant societies and cultures. In some cases, over recent cen-turies, tribal groups or cultural minorities have migrated into areas to which they are not indigenous, but have established a presence and continue to maintain a definite and separate social and cultural identity, as well as related social institutions. In such cases, the second identifying characteristic carries greater weight.⁴⁰

Indigenous peoples are also often described with reference to their ways of life. In many cases, indigenous peoples live in separate communities or cultural and ethnic groups. Such communities and groups are often located in areas that are geographically distant from urban centres and often function on the periphery of political, social, cultural, and economic systems of dominant or mainstream society. According to the definition of the Asian Development Bank , “it is not unusual to find communities of indigenous people on the fringes of urban areas, comprising indigenous peoples who have migrated but remain distinct from the mainstream. Indigenous peoples’

communities in a given country can reflect varying degrees of acculturation and in-tegration into the dominant or mainstream society.”⁴¹

In specific development interventions supported by the Bank, the national legislation of the country in which the development intervention is taking place provides a basis for defining indigenous peoples. This includes constitutional, statutory, customary, as well as

39 Article 33 of the United Nations Declaration on the Rights of Indigenous People

40 Additional characteristics often described to indigenous peoples include (i) self-identification and identification by others as being part of a distinct indigenous cultural group, and the display of desire to preserve that cultural identity, (ii) a linguistic identity different from that of the dominant society, (iii) social, cultural, economic, and political traditions and institutions distinct from the dominant culture, (iv) economic systems oriented more toward traditional systems of production than mainstream systems, and (v) unique ties and attachments to traditional habitats and ancestral territories and natural resources in these habitats and territories. Asian Development Bank http://www.adb.org/documents/policies/

indigenous_peoples/ippp-002.asp Accessed 4.3.2011.

41 Asian Development Bank, Definition of Indigenous Peoples http://www.adb.org/documents/policies/indigenous_peo-ples/ippp-002.asp Accessed 4.3.2011.

international law. Additionally, it includes any international convention that the country is a party to. Other country-specific considerations must also be taken into account.⁴²

As a working definition that is to be employed in the Bank’s operations, indig-enous peoples are to be regarded as individuals with a social or cultural identity that is distinct from dominant or mainstream society, thus, making them vulnerable to being disadvantaged in development processes. The application of any definition of indigenous peoples should be able to differentiate it between indigenous peoples and other cultural and ethnic minorities for which indigenous status is not regarded as an issue; the broader protection of vulnerable groups is an issue addressed in other Bank policies and practices.⁴³

The description of Indigenous Peoples, as given by the World Bank⁴⁴, reads:

Indigenous Peoples can be identified in particular geographical areas by the presence in varying degrees of the following characteristics:

a) close attachment to ancestral territories and to the natural resources in these areas;

b) self-identification and identification by others as members of a distinct cultural group;

c) an indigenous language, often different from the national language;

d) presence of customary social and political institutions;

and

e) primarily subsistence-oriented production.

Another UN Document on the definition of indigenous peoples is the Working Paper by the Chairperson-Rapporteur in the Working Group on Indigenous Populations (WGIP), Mrs. Erica-Irene A. Daes, which provides a thorough overview on the con-cept of “indigenous people” in the UN context.⁴⁵ Indigenous representatives have expressed their views on several occasions before the Working Group. Indigenous representatives particularly noted a number of elements related to the issue during the thirteenth session of the Working Group. For example, the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr. M. Dodson, stated: “there must be [a] scope for self-identification as an individual and acceptance as such by the group.

42 ibid.

43 ibid.

44 Operational directive 4.20, 1991: See more World Bank, Policy Brief, Indigenous peoples, Still among the poorest of the poor. http://siteresources.worldbank.org/EXTINDPEOPLE/Resources/407801-1271860301656/HDNEN_

indigenous_clean_0421.pdf. Accessed 4.3.2011.

45 STANDARD-SETTING ACTIVITIES: EVOLUTION OF STANDARDS

CONCERNING THE RIGHTS OF INDIGENOUS PEOPLE, Working Paper by the Chairperson-Rapporteur, Mrs.

Daes Erica-Irene A., on the concept of ”indigenous people” E/CN.4/Sub.2/AC.4/1996/2 10 June 1996.

Above all and of crucial and fundamental importance is the historical and ancient connection with lands and territories.”⁴⁶

Irene A. Daes notes that an important study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities was made by Mr. F. Capotorti, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities. He argued that the size and power of a group are important considera-tions in determining whether it should be an object of special international protection.

He reasoned that, a “minority”, from the viewpoint of sociology, is not necessarily the same as a “minority” within the context of international human rights law. From his perspective, he proposed the following definition: “A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the State - possess ethnic, religious or linguistic characteristics dif-fering from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.”⁴⁷

Finally, the International Labour Organization (ILO) Convention 169 ‘Concern-ing Indigenous Peoples in Independent Countries’ (1989), describes the peoples it aims to protect. According to Article 1, the Convention applies to:

(a) tribal peoples in countries whose social cultural and economic condi-tions distinguish them from other seccondi-tions of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations, and

(b) Peoples in countries who are regarded by themselves or others as indig-enous on account of their descent from the populations that inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain, some or all of their own social, economic, spiritual cultural and political characteristics and institutions.

As already described in the beginning of the chapter, there are many complexities related to the attempt to formulate a universal definition of indigenous peoples. At this point, the definitions presented above are only views of persons or institutions working with the issues. It should also be realised that many of the definitions are made for specific purposes, such as the definitions of the Asian Development Bank, the World Bank and ILO Convention No. 169.

46 See E/CN.4/Sub.2/1995/24, 41-51.

47 Capotorti F., Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, United Nations publication, Sales No. E.91.XIV.2, Geneva, 1991,568.

Why do we need a definition then? Do we even require one at all? In the context of the ILO Convention, the definition question is the most distinct one. Article 1 enumerates the beneficiaries of the Convention. This is an interesting starting point and, it should be noted that, these defining elements, as noted earlier, only apply to this instrument. In the ILO context, the question is not necessarily about defining indigenous peoples but about “determining” those peoples and individuals with special human rights under the Convention. The same issue arose when the UN Declaration on Indigenous Peoples was drafted.⁴⁸ This approach and the above questions are exam-ined in more detail in chapter 2.2, which deals with subjectivity, or the identification of right-holders under ILO Convention No. 169.

In the opinion of Charperson-Rapporteur Mrs. Daes, at the fourteenth session of the Working Group of Indigenous Populations, it was further explained that the “in-digenous” concept is incapable of a precise and inclusive definition that can similarly be applied to all global regions. However, greater agreement may be achieved in iden-tifying the principal factors that have practically distinguished “indigenous peoples”

from other groups in the UN system and regional intergovernmental organizations.⁴⁹ In light of the above definitions, it seems that, for certain purposes, a contemporary working definition of “indigenous people” has criteria that seek to include cultural groups (and their continuity or association with a given region, or parts of a region, and who formerly or currently inhabit the region) either before or after their subse-quent colonisation or annexation; or

• alongside other cultural groups during the formation and/or reign of a colony or nation-state; or

• independently or largely isolated from the influence of the claimed governance by a nation-state, and who furthermore:⁵⁰

• have maintained at least in part their distinct cultural, social/organisational, and/

or linguistic characteristics, and in doing so remain differentiated in some degree from the surrounding populations and dominant culture of the nation-state.

48 “This is an appropriate stage at which to review the discussion of these issues by participants at the first meeting of the working group of the Commission on Human Rights which was established by resolution 1995/32. Several delegations of Member States maintained that it was essential to adopt a definition of the concept ”indigenous” before negotiating the substantive provisions of a declaration on the rights of these peoples.” E/CN.4/Sub.2/AC.4/1996/2 10 June 1996, 19.

49 E/CN.4/Sub.2/AC.4/1996/2 10 June 1996.

50 “United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295)”. United Nations. UNPFII. http://

www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf. Accessed 22.3.2011.

A criterion that includes⁵¹ peoples who self-identify as indigenous, and/or those rec-ognized as such by other groups, is often added to the above.

Note that, even if all of the above criteria are fulfilled, some people may either not consider themselves indigenous or may not be considered indigenous by governments, organizations or scholars. The discourse of who is and is not indigenous may also be viewed within the context of postcolonialism and the evolution of post-colonial societies.

To conclude, it is important to define indigenous peoples in a manner that provides these peoples and persons with the possibility to enjoy their inherent rights as (the descendants of) the original inhabitants of a particular territory. The inseparability of cultural distinctiveness and territory from the concept of “indigenous” was noted by the United Nations Conference on Environment and Development in paragraph 26.1 of Agenda 21, adopted by a consensus of the Member States: “Indigenous people and their communities have a historical relationship with their lands and are generally descendants of the original inhabitants of those lands.”⁵²

The World Bank Operational Manual also identifies “a close attachment to ancestral territories and to the natural resources in these areas” as one of five factors, which to varying degrees, tend to characterize “indigenous peoples”.⁵³ In 1994, the centrality of land tenure systems and ecological knowledge to the cultures of indigenous peoples was once again consensually reaffirmed, at the International Conference on Population and Development in Cairo. ⁵⁴ Although ILO Convention No. 169 does not include geographical factors in its definition of “indigenous”, Article 13 nonetheless affirms the “special importance” of continuing the relationship, as well as the “cultural and spiritual values”, between indigenous peoples and their ancestral territories. In other words, the cultural distinctiveness of indigenous peoples, which is central to the concept of “indigenous” in contemporary international law, is inseparable from “territory”.⁵⁵

In document ILO convention no. 169 in a Nordic context with comparative analysis : an interdisciplinary approach (sivua 30-40)