PART II Two Themes
2.2 Subjectivity - Formulating Indigenousness and the Right Holders
2.2.3 Individuals are the Subjects of ILO Convention No. 169
Perhaps the primary indication that individuals are among the subjects of ILO Con-vention No. 169 is the inclusion in the instrument of provisions, which relate to the individual members of the tribe or group.
Article 10.1 states :
In imposing penalties laid down by general law on members of these peoples account shall be taken of their economic, social and cultural characteristics.
and Article 11 provides:
The exaction from members of the peoples concerned of compulsory personal services in any form, whether paid or unpaid, shall be prohibited and punishable by law, except in cases prescribed by law for all citizens.
As it is left to indigenous peoples to decide on their preferred form of ownership, it can be argued that the articles on land rights (arts 13-19) include the individual dimension of ‘indigenous’ as well.
Article 14
The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addi-tion, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
480 Meijknecht 2001, 151. Peoples concerned shall have the right’ clearly indicates the ‘Peoples’ as the bearers of the right in question. Further, also the nature of the rights mentioned in Article 7 does not leave much room for interference by the State. Meijknecht 2001, 151.
Article 15
1.The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, govern-ments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permit-ting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible Article 17.1 and 17.3.
Procedures established by the peoples concerned for the transmission of land rights among members of these peoples shall be respected.
Persons not belonging to these peoples shall be prevented from taking advantage of their customs or of lack of understanding of the laws on the part of their members to secure the ownership, possession or use of land belonging to them.
Article 16.5
Persons thus relocated shall be fully compensated for any resulting loss or injury.
Article 21
Members of the peoples concerned shall enjoy opportunities at least equal to those of other citizens in respect of vocational training measures.
Article 22.1
Measures shall be taken to promote the voluntary participation of members of the peoples concerned in vocational training programmes of general application.
Article 26
Measures shall be taken to ensure that members of the peoples concerned have the opportunity to acquire education at all levels on at least an equal footing with the rest of the national community.
Article 28
Children belonging to the peoples concerned shall, wherever practicable, be taught to read and write in their own indigenous language or in the language most commonly used by the group to which they belong.
On the international agenda, it is relatively obvious who are considered to be the world’s indigenous peoples, although dissent also exists. However, there are many reasons as to why the question is often complicated on an individual and group level. Thus, questioning the existing number of the world’s indigenous peoples is often contentious.
Even where peoples are concerned, identified and ‘quantified’, they may be denied the use of the term ‘indigenous’; as such a description may introduce notes of priority and privilege, or ‘a sort of snobbery’, into inter-communal or community-state relations.
However, disputes regarding figures are often politics, as opposed to analytics. They are normative, not cognitive, and impose an outside will upon peoples and contest how they identify themselves. The contentious issue of description and definition – later examined in detail – has become important in the context of current legal politics.
The growing respect for the principle of self-identification481, as an essential aspect of individual and group freedom, complicates figures.482 It should be noted that, even though self-identification is generally used to refer to peoples, the term also includes an individual’s feeling. Without individuals there are no groups. Logically, the definition of a group and the definition of an individual cannot be fully separated.
According to Thornberry, individuals exercise their preferences and choose to identify with a group or not. In this respect, some legal systems are relatively freewheeling. In the field of minority rights, Hungarian legislation allows individual choice whether it means belonging to a minority – or more than one minority.483 Discrimination against a group may, thus, influence public declarations of group affiliation as individuals change their minds. Groups may exist as cultural formations with a history, or represent creations of state laws. Statistics abound but are not consistent.484
For example, the 2006 Australian census, showed that 455,028 people identified themselves as being of Aboriginal and/ or Torres Strait Islander origin, thus, compris-ing 2.3% of the total population.485
481 The principle is contained in Article 1.2 of 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”.
482 Thornberry, Patrick, Indigenous peoples and human rights, Manchester University Press, 2002, 15.
483 Report submitted by Hungary under the Council of Europe framework Convention for the Protection of National Minorities, ACFC/SR (99) 10, 33, according to Thornberry 2002, 15.
484 Thornberry 2002, 15-16.
485 Australian Bureau of Statistics, Population Characteristics, Aboriginal and Torres Strait Islander Peoples 2006, ABS cat no 4713.0, 2008, 12.
There were approximately 409,729 persons of Aboriginal origin (90% of the to-tal) and 29,239 of Torres Strait Islander origin (6%). A further 19,552 people (4%) identified themselves as being of both Aboriginal and Torres Strait Islander origin.486
Aboriginal people were first counted as citizens in the 1971 Census. Since then, censuses have shown a significant increase in the number of people identifying them-selves as Aboriginal and/or Torres Strait Islanders:
• Between the 1991 and 1996 Census,there was a 33% increase in the numbers of recorded Indigenous peoples.
• Between the 1996 and 2001 Census, there was a 16% increase.
• Between the 2001 and 2006 Census, there was an 11% increase.487
Increases in the indigenous population cannot be accounted for by birth rate alone.
The Australian Bureau of Statistics (ABS) attributes the increase to a growing pro-pensity of people to identify themselves as Aboriginal and/or Torres Strait Islander, and to greater efforts of recording indigenous status in the census. As the number of indigenous peoples recorded increases, the ABS has warned that comparisons made between two censuses must be made with caution. They recommend comparing per-centages from two censuses, as opposed to directly comparing counts or numbers.488 Despite increases in the number of people identifying themselves as indigenous in censuses, significant underestimates are still thought to occur. In the 2006 Census, indigenous status was unknown for 1,133,466 people, comprising 5.7% of the total number of people surveyed.As some of these people are indigenous, the ABS calculates
‘experimental estimates’ of the true number of Indigenous peoples. However, it is important to distinguish actual counts from experimental estimates when considering the size of the Indigenous population.489
As noted above, due to the undercount of the Census, the ABS estimated that, in 2006, the indigenous population numbered 517,174, or approximately 2.5% of the total Australian population.490
486 Australian Bureau of Statistics, Population Characteristics, Aboriginal and Torres Strait Islander Peoples 2006, ABS cat no 4713.0, 2008, 19, table 2.2.
487 Australian Bureau of Statistics, Population Characteristics, Aboriginal and Torres Strait Islander Peoples 2006, ABS cat no 4713.0 (2008), 12.
488 Australian Bureau of Statistics and Australian Institute of Health and Welfare, The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples 2003, ABS cat no 4704.0 (2003), 245.
489 Australian Bureau of Statistics Population Characteristics, Aboriginal and Torres Strait Islander Peoples 2006, ABS cat no 4713.0 (2008), 15.
490 Australian Bureau of Statistics, Population Characteristics, Aboriginal and Torres Strait Islander Peoples 2006, ABS cat no 4713.0 (2008), 9.
The world’s total indigenous population varies from 200 million to 370 million.491 Indigenous peoples live in every region of the world. However, 70% of indigenous peoples live in Asia, while Latin America holds 50 million, which make up 11% of the region’s population. It is claimed that there are 100,000 Inuit, 80,000 Saami, and 1.5 million indigenous people in North America. There are 13 million indigenous peoples in Mexico and Central America, 14 million nomads in Africa and 350,000 Maoris in New Zealand. In 2001, approximately 90% of Australia’s indigenous population was identified as being of Aboriginal origin; 6% were identified as being of Torres Strait Islander origin and 4% were identified as being of both Aboriginal and Torres Strait Islander origin. In Bolivia and Guatemala, indigenous peoples make up more than half of the population; the Adivasi, or tribal peoples of India, constitute only 8% of the total population of the country, but 40% of them are internally displaced.492
Many governments allegedly undercount their indigenous population. ‘Statisti-cal ethnocide’ is always a possibility. According to Thornberry, in the context of the Adivasi population of Bangladesh, a study noted that,
“[m]any observers feel that undercounting has been done deliberately to emphasize the marginality of the Adivasi population. Lower numbers mean that their legitimate demands can be more easily dismissed or ignored by gov-ernments and thus excluded from relief aid or development programmes.”493 The estimated Nordic Saami population varies from 75,000 up to 100,000.494 There are several reasons for this, which will be listed, in short, below. However, the issue will be further examined in more detail in articles No.2 and No.4 of this dissertation.
Firstly, the number of persons belonging to ethnic minorities is rarely “listed” as a result of the occurrences of the Second World War. Secondly, definitions of who may be regarded as Saami varies in the three Nordic countries. For example, in Sweden, the spouse of a Saami may also be “accepted” as Saami. Thirdly, each states’ Saami parliaments has its own list of voters, the electoral roll. In Finland, for example, this list serves as the basis for the official number of Saami, 9200 persons.495 In Sweden,
491 IWGIA International Work Group for Indigenous Affairs http://www.iwgia.org/sw641.asp Visited 9.2.2011. , World Bank according to Rural Poverty portal http://www.ruralpovertyportal.org/web/guest/topic/statistics/tags/indigenous%20 peoples Visited 9.2.2011.
492 See for example: Rural Poverty portal http://www.ruralpovertyportal.org/web/guest/topic/statistics/tags/indigenous%20 peoples Visited 9.2.2011.
493 Thornberry 2002, 16-17.
494 See for example: The free library at http://www.thefreelibrary.com/Number+of+Sami+People+in+Northern+Euro pe-a01073958137 ; Nordic Way http://www.nordicway.com/search/Sami.htm; The Saami Parliaments in Finland www.
samediggi.fi , Sweden www.samediggi.se and Norway www.samediggi.no . 495 In 2009. www.samediggi.se
7809496 persons are registered in the electoral roll, while approximately 13 89 are reg-istered in Norway’s. However, the assumption that there are more than the estimated number of Saami in Norway (estimation of 75 000-100 000) is officially presented.
In regard to ILO Convention No. 169, the definition of an indigenous person raises the question of subjectivity. Similar to the situation in Honduras, it is reasonable to ask:
how do we ensure whether, and in what manner, the Convention is applied to those indig-enous and tribal peoples who are not affiliated with this organisation? Still, if the register serves as the basis for determining peoples’ rights, how can we ensure that every person is registered? This is a particularly important issue as the registration is strongly connected to how a person identifies themselves.497In Norway and Sweden, it appears as though a person may identify themselves as Saami, despite not being in the electoral roll. This identification process is particularly important for individuals who are descendents of the original inhabitants and still practice reindeer husbandry. However, this issues has not yet been discussed in Finland, despite the fact that it appears as though the current definition of Saami does not conform to Article 1 of ILO Convention No. 169.
How can it be ensured that the persons not “listed” on the electoral rolls of the Saami parliaments are also regarded as the subjects of the Convention? At the same time, if such recognition serves as a prerequisite for indigenous rights, is it possible to ensure that all persons are “listed”?