4. Theoretical Framework
4.1 ILO Convention No. 169
The ILO Convention No. 169 is a legally-binding international convention written with the participation of indigenous representatives (ILO 2003). It recognizes “the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live” (ILO 1989, para 6). It outlines the rights of indigenous peoples and the responsibilities of government to protect those rights (ILSD 2013). Through this convention, the ILO set a minimum standard and brought international recognition to the rights of indigenous people, including the right to participate in the management of natural resources on their traditional territory (ILSD 2013; ILO 2017). As of June 2017, only 22 countries have ratified the convention making it legally binding to those countries, a list which excludes Canada and Finland, though its influence extends beyond the number of countries that have ratified the convention (ILO 2003; ILO 2010). For the purposes of this paper, the ILO Convention No. 169 outlines an internationally recognized minimum standard of indigenous peoples’ involvement in the management of natural resources.
The Convention notes that indigenous peoples in many parts of the world are “unable to enjoy their fundamental human rights to the same degree as the rest of the population of the States within which they live, and that their laws, values, customs and perspectives have often been
eroded” (ILO 1989, para 7). Article 5 establishes that governments must recognize and protect the values of indigenous peoples, and respect the integrity of these values, their practices and their institutions (ILO 2017). The ILO Convention No. 169 Handbook clarifies that
“indigenous peoples’ rights are not ‘special’ rights, but are articulations of universal human rights, as they apply to indigenous peoples” (ILSD 2013, 13). As a result of existing discriminatory practices and recognizing their collective nature, the rights of indigenous peoples as a unique group need to be articulated and protected using special measures (ILO 2003; ILSD 2013).
The ILO Convention No. 169 has an inclusive definition of indigenous people, indicating that
“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” (ILO 1989, 1(2)).
Groups must have “social, cultural and economic conditions [that] distinguish them from other sections of the national community” and have retained “some or all of their own social, economic, cultural and political institutions” (ILO 1989, 1(1)). Objectively, indigenous peoples are those who are descended from a population who inhabited that geographical area at the time of colonisation (ILSD 2013).
The Convention places the responsibility on governments to develop, “with the participation of the peoples concerned, co-ordinated and systematic action to protect the rights of these people and to guarantee respect for their integrity” (ILO 1989, 2(1)). Participation is considered to go further than just consultation, towards indigenous groups being able to identify their priorities and having ownership in the development of policy from the beginning (ISLD 2013). This is elaborated upon in Article 4, which indicates that special measures should be taken to safeguard the environment and culture, among other aspects, of the peoples concerned and re-iterates that these safeguards “shall not be contrary to the freely-expressed wishes of the peoples concerned” (ILO 1989, 4(2); ILO 2017). These Articles demonstrate governments’ responsibility under the Convention to protect the rights of indigenous peoples, including the protection of their environment and culture, and the importance of involving indigenous groups themselves in this process.
Throughout the Convention, the States that have ratified the Convention are directed to take various actions “with the participation and co-operation of the peoples affected” (ILO 1989, 5(c)). Participation and consultation are key components of the Convention, which aim to address discriminatory practices affecting indigenous peoples and give them a voice when decisions are made that affect their lives (ILSD 2013). The right to participation and
consultation are considered “fundamental principles of democratic governance” and, while not a right given to indigenous peoples exclusively, their inclusion reaffirms the importance of consulting with indigenous groups specifically (ISLD 2013, 21). Article 6 requires that governments consult indigenous peoples when considering a decision that may affect them directly (ILO 2017). This includes the Government’s responsibility to carry out studies to assess the potential impacts of a planned development activity and “to protect and preserve the environment of the territories they inhabit” (ILO 1989, 7(4)).
For the purposes of consultation and participation, indigenous peoples are to be contacted through their representative institutions, as determined by the indigenous people themselves, and an intercultural dialogue should be established (ISLD 2013). Article 6 elaborates that
“consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures” (ILO 1989, 6(2)). As it is the intention and not a requirement for both parties to reach a consensus, indigenous peoples are not granted a veto power though the expectation is that they have some ability to influence decision-making and may use their rights as bargaining tools in negotiating environmental protection measures, reclamation plans and compensation with the company (ILO 2003; ILSD 2013). The importance of coming to an agreement or consent is increased when the risk to an indigenous group’s culture and livelihood is greater, such as when considering relocation from their traditional lands (ILSD 2013). Although not a requirement, the ILO encourages ratified countries to consult with indigenous peoples when writing their status report for the ILO every five years (ILSD 2013).
The Convention emphasizes the importance of respecting the significance of the relationship between indigenous peoples and their traditional territory (ILO 2017). Part II of the Convention focuses on this relationship, stating that “the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised”
(ILO 1989, 14(1)). These land rights are to be established based on traditional occupation and use, both as individuals and the collective (ILSD 2013). The territory considered is inclusive of the land, rivers, and coastal sea (ILO 2003). The Convention puts the onus on governments to identify these lands and guarantee effective protection of those rights, and to establish procedures to settle land claims from within the national legal system (ILO 1989; ILSD 2013;
ILO 2017).
Related to the natural resources within their traditional territory is “the right of these peoples to participate in the use, management and conservation of these resources” (ILO 1989, 15(1)) including the right to be consulted regarding exploration and exploitation of surface and subsurface resources owned by the State (ILSD 2013). The Convention does provide for conditions where the indigenous peoples may be removed from their territory, but specifies that this must only occur with their “free and informed consent” or “following appropriate procedures”, and they shall be “fully compensated” (ILO 1989, 16(2) and 16(5)).
Additionally, the State should respect the internal processes developed by the community to transfer land rights among its members and prevent non-members from taking advantage of these processes (ILO 1989).
For the purposes of this paper, the above articles suggest that as part of the environmental impact assessment legislation, indigenous peoples should be identified as a unique group that should be consulted during the EIA process and the results of the impact assessment should be considered in the decision-making process (ILSD 2013).
Article 32 of the Convention addresses indigenous peoples whose traditional territory spans geopolitical borders. It indicates that, where good relationships exist between States,
“Governments shall take appropriate measures, including by means of international agreements, to facilitate contacts and co-operation between indigenous and tribal peoples across borders” (ILO 1989, 32). The presence of EIA legislation that considers trans-boundary impacts will indicate that this component of the Convention has been met.
As part of the rights of indigenous peoples outlined in the Convention, it is the State’s responsibility to “ensure that agencies or other appropriate mechanisms exist to administer the programmes affecting the peoples concerned, and shall ensure they have the means necessary for the proper fulfillment of the functions assigned to them” (ILO 1989, 33(1)). Since these programmes need to be executed “in co-operation with the peoples concerned”, this suggests that capacity funding should be available to enable indigenous communities to participate to the best of their ability in the management of natural resources found within their territory (ILO 1989, 33(2)(a)).
The eight main components of the Convention that directly relate to the involvement of indigenous peoples in the EIA process are indicated in Table 1. Each piece of EIA legislation will be evaluated to determine how well it complies with the international standard laid out in the ILO Convention No. 169 framework. In recognition of the importance of developing an
implementation strategy that is specific to the circumstances in the country, the Convention uses broad language to give flexibility to the ratifying countries (ILSD 2013; ILO 2017). One of the criticisms of the use of flexible language is that it makes the obligations of each country vague (ILO 2017). The framework tries to take into consideration this inclusive language, but it is important to note that this is not a legal interpretation of the Convention.
Table 1 Framework of ILO Convention No. 169 with key components relating to natural resource management
# ILO Convention No. 169 Component
1 Recognition of indigenous peoples as having rights related to their culture, history and values
2 Self-identification as an indigenous group
3 Governments have a responsibility to protect the rights of indigenous groups with their participation
4 Participation and consultation are done in good faith
5 Recognition of the rights of ownership and possession to traditional territory 6 Recognition of the rights to participate in the use, management and conservation of
resources
7 Transboundary consideration to address issues of the indigenous peoples as a whole 8 Capacity funding