The rights of indigenous peoples under international law

Abstract

International law guarantees rights to indigenous peoples regarding traditional lands, knowledge, cultural preservation, and human security. This paper will examine the sources of these rights and legal remedies for violations of law. Protection of indigenous peoples’ cultures and resources contribute to the protection of the global environment.

Keywords:

• international law
• indigenous peoples
• traditional lands
• development
• consultation
• consent
• survival

Introduction

International law provides rules and arenas to further the interests of indigenous peoples. There are declarations passed by the United Nations, which, while not binding on states, often receive such widespread support that their principles are deemed part of customary international law and/or of the “general principles of law recognized by civilized nations” (Anaya, 2009, pp. 79–82, 124, 151). Two declarations, arguably a part of customary international law or “general principles” by reason of their recognition by international and state tribunals, are the Declaration of the Rights of Indigenous Peoples (United Nations Documents, 2007; Lillich, Hannum, Anaya, & Shelton, 2009, pp. 129–139) and the American Declaration of the Rights and Duties of Man (1948; Lillich et al., 2009, pp. 227–232).

These declarations, as well as a variety of international treaties and conventions, provide support for indigenous peoples in their struggle to preserve physical and cultural survival in the face of economic development projects imposed upon them and which threaten environmental sustainability. International treaties and conventions are binding on signatories and also arguably are deemed part of customary international law or “general principles” (Anaya, 2009, pp. 143–144, 128–129).

International law cases have not as yet been decided on the basis of what groups are properly classified as “indigenous”. Article 33 (1) of the United Nations Declaration of the Rights of Indigenous Peoples (Lillich et al., 2009, p. 137) states that such peoples have the right to “determine their own identity”.

Current issues

The most contested issues today concern: (1) the question of whether or not economic development projects require free, prior, and informed consent of indigenous peoples before such projects may legally proceed; (2) the question of what constitutes legally sufficient consultation; and (3) the issue of whether economic development projects, under certain circumstances, are illegal under international law, regardless of whether consent or consultation is required.

Discussion of the issues

Is free, prior, and informed consent required?

Article 10 of the United Nations Declaration of the Rights of Indigenous Peoples (2007) states that (Lillich et al., 2009, p. 132):

Indigenous peoples shall not be forcibly removed from their lands or territory. No relocation shall take place without the free, prior and informed consent of the indigenous people, and after agreement on just and fair compensation and, where possible, with the option of return.

Article 8, parentheses 2(a) and (b), require states to provide “effective mechanisms” to prevent any action which aims or has the effect of “depriving them of their cultural integrity as distinct peoples” or “dispossessing them of their lands, territory or resources” (Lillich et al., 2009, p. 132).

Article 32 (2) of the Declaration mandates that states consult with the people in order to obtain their free, prior, and informed consent before any project “affecting their lands, territory and other resources, particularly in connection with development, utilization, or exploitation of minerals, water, or other resources” may be undertaken (Lillich et al., 2009, p. 137).

Article 15 (2) of the United Nations International Labour Organization Convention (No. 169) (1989) on Indigenous and Tribal Peoples provides that in cases where indigenous peoples' lands and mineral and sub-surface national resources are affected by state action, the states must consult the people “with a view to ascertaining whether and to what degree their interests would be prejudiced before undertaking or permitting any programmes, for the exploitation of such resources pertaining to their lands” (Lillich et al., 2009, p. 132). Article 4 (1) (Lillich et al., 2009, p. 117) of this Convention requires states adopt special measures to safeguard indigenous and tribal peoples’ property, cultures, and environment. Article 6, 1(a) requires states consult with indigenous and tribal peoples and their representatives “whenever consideration is being given to legislative or administrative measures which may affect them directly” and states in Article 6, 2 (pp. 117–118) that such consultation must have “the objective of obtaining indigenous and tribal peoples’ agreement or consent to the proposed measures” (p. 118).

The International Convention on the Elimination of All Forms of Racial Discrimination (Racial Discrimination Convention) (1966), referred to as ICERD, in Article 5(d) (v) (Lillich et al., 2009, p. 24) prohibits differential treatment of racial or ethnic groups regarding “the right to own property alone as well as in association with others”. Clearly, indigenous peoples’ communal properties traditionally owned or used should not be treated differently from the right to private property held by others to have ownership or title as a matter of public record.

The United Nations Committee on the Elimination of All Forms of Racial Discrimination (CERD, which interprets ICERD) (1997) stated that:

 … [I]n many regions of the world, indigenous peoples have been and are still being discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized. (General Recommendations, 23 UNDOC., CERD, C-1/5// isc. 3, paragraph 3)

Article 5 of the above Racial Discrimination Convention requires states guarantee “The right of everyone … to take part in government as well as in the conduct of public affairs at any level” (Article 5(c)) (Lillich et al., 2009, p. 24). Also in 1997 the CERD held that where indigenous peoples have been deprived of their lands and territories without their free and informed consent, the State is obligated to take steps to return these lands and territories (General Recommendations, 23, Rights of Indigenous Peoples, paragraph 5, Doc. A/52/8, Annex V, 18 August 1997). Based on the CERD's interpretation of the Racial Discrimination Convention, one can conclude that the convention views deprivation of indigenous peoples' property and their cultural identity or a threat to both as unlawful racial discrimination (see decision of the Inter-American Court of Human Rights in Saramaka People v. Suriname (Ser. C) No. 172, 28 November 2007).

The Declaration of the Rights of Indigenous Peoples can be interpreted as requiring only consultation of peoples and not consent, except in cases of forced relocation from one's territory. The ILO Convention of 1989 may be interpreted as only requiring consultation. However, the requirements of these instruments are that the State enforce consultations through “effective mechanism” and/or “special measures” and textual components of the Declaration and ILO Convention that states must seek consent of indigenous peoples before development projects can be approved provides support that free, prior, and informed consent is a mandate. The UN Special Rapporteur on Indigenous Peoples’ Rights has found that “free, prior and informed consent is essential for the protection of human rights of indigenous peoples” (see “Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples”, UN Doc. E/CN/4/2003/90, 21 January 2003, p. 2). The opinion of the Special Rapporteur finds support in a resolution passed by the United Nations General Assembly of the World Conference on the Rights of Indigenous Peoples (22 September 2014), as well as by other interpretations of states. Paragraph 3 of the aforesaid resolution states:

We reaffirm our support for the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly on 13 September 2007, 2 and our commitments made in this respect to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them, in accordance with the applicable principles of the Declaration. (UN Doc. A/RES/69/2)

It should be noted that the USA originally opposed the Declaration of the Rights of Indigenous Peoples in 2007, partly on the grounds that it required prior consent of the peoples before development projects can be approved (Anaya, 2009, p. 72). Sweden also interpreted the Declaration in 2007 as only requiring consultation and not consent (Discussion by Swedish UN Ambassador [Ms Strom], UN Docs. A 161 PV 107, pp. 10–28 and A 161 1PV 108, pp. 1–11; see also Anaya, 2009, p. 92; Lillich et al., 2009, pp. 129–39).

Interestingly enough, Canada was the only nation which objected to the General Assembly Resolution reaffirming support for the free, prior, and informed consent provision of the Declaration of the Rights of Indigenous Peoples in September 2014 (Lum, 2014). Canada asserted that the free, prior, and informed consent language of the Declaration can be interpreted as giving indigenous peoples a right to veto actions by the State in effecting indigenous lands. The Canadian government position is inconsistent with a decision of the Canadian Supreme Court in Tsilhgot, in Nation v. British Columbia (26 June 2014, SCC 44, Docket No. 3498662614), which held that Aboriginal title to lands could be established by proof of a history of regular and exclusive use. The Court stated that to justify an incursion by government on indigenous lands, the State has the burden to show that the established benefit to indigenous peoples would outweigh the harm caused by the incursion. In this case, the Province of British Columbia had granted a license to a logging enterprise to cut trees that the indigenous people wanted to remain untouched. Although the Court's decision was based on Canadian law, it is not inconsistent with the UN Declaration. The Court required that free, prior, and informed consent of the indigenous peoples concerned must occur before their property can be taken or infringed upon.

The Constitutional Court of Guatemala (December 2013), in Mataquescuintla v. Guatemala, held that under ILO Convention 169 the Government was required to obtain the peoples’ consent before it could proceed to permit a mining operation by a private corporation to begin production (Soares, 2013). In this case, 96% of the local peoples concerned rejected operation of the mine in a public referendum.

The Supreme Court of Belize (2007), in a case involving Maya land tenure, issued an order that the State and its corporate collaborators must abstain from any action which would affect the existence or enjoyment of Maya property without their informed consent (Cal et al. v. Attorney General Claims Nos. 171 and 172, Supreme Court of Belize, Judgment of 18 October 2007).

The Belize Court, in support of its conclusion that informed consent is required, cited the American Convention on Human Rights (1948); the American Declaration of the Rights and Duties of Man (1948); Lillich et al. (2009, pp. 227–232); the Convention and the Committee on the Elimination of All Forms of Racial Discrimination; the Declaration of the Rights of Indigenous Peoples; the ILO's Indigenous and Tribal Peoples Convention; and the Belize Constitution (Anaya, 2009, pp. 116–131).

The Inter-American Court of Human Rights, in Saramaka People v. Suriname (cited above), adjudicated a claim by the Saramaka people against the Government of Suriname alleging that logging and mining concessions granted by Suriname on communal property traditionally occupied or used by the Saramaka people threatened their physical and cultural survival. The Court cited Article 21 (1) (2) of the American Convention on Human Rights (Lillich et al., 2009, p. 240) which recognizes that everyone has the right to the use and enjoyment of his property. Article 21 recognizes that such use and enjoyment may be lawfully subordinated to the interests of society. Article 2 of the said Convention is also cited by the Court. That Article requires states which are parties to the Convention to adopt measures to ensure the implementation of the rights specified in the Convention. The Court also noted the right of indigenous peoples to self-determination, within a nation-state context, pursuant to Articles I of both the International Covenant on Civil and Political Rights (1966) (Lillich et al., 2009, pp. 43–60) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966) (Lillich et al., 2009, pp. 33–42). Article 1(1) of the ICESCR grants to all peoples the “right to freely determine their political status and freely pursue their economic, social and cultural development”.

The Court in the Saramaka case focused heavily on Article 21 of the American Convention, which prohibits the taking of individual or collective properties. The Court held that where there are large-scale investment or development projects which have a significant impact or threaten to injure or destroy indigenous or tribal peoples’ subsistence living or physical or cultural preservation, the State must secure free, prior, and informed consent of the peoples in question before such development projects can be lawfully approved. In other words, the states are obligated under the Convention to adopt measures protecting the rights of indigenous peoples to receive adequate consultation and the right to prevent the destruction of their communities. It also should be noted that the CERD clearly requires free, prior, and informed consent as a means of preventing racial discrimination against indigenous people. Traditional property owners ordinarily are given substantial protection including the right to just compensation. There is no reason why indigenous peoples as property owners should not also have the right to be free from expropriation of their property without some semblance of due process and protection from extinction. In addition, the right to self-determination is an additional measure to ensure the rights of indigenous peoples.

The Inter-American Court of Human Rights (2012), in Sarayka v. Ecuador, voided Ecuador's concession to oil producers who had planned to engage in widespread oil exploration on indigenous land without even consulting the people in question (Sarayka v. Ecuador, Ct. HR (ser. C) No. 245, 1978, June 2012).

When looking at the various pieces of international law in their totality one can conclude that international law mandates the requirement of free, prior, and informed consent where a large-scale investment or development project has a significant impact on the ability of indigenous people to maintain subsistence living, environmental sustainability, and cultural survival. The Convention on the Elimination of All Forms of Discrimination and the recent decisions of the Inter-American Court of Human Rights provide solid support for such conclusions. Where injury is minimal or does not threaten the physical and cultural survival of the people, such consent would not be required. The United Nations Committee on Human Rights, in Landsman et al. v. Finland (Comm. No. 671, View of 30 October 1996; see also Anaya, 2009, p. 249) held that development projects are not violative of Article 27 of the International Covenant on Civil and Political Rights (1966) where the project or activity does not have a significant impact or where the injury or potential injury is trivial.

What constitutes adequate consultation?

If the consultation is legally insufficient one never reaches the consent issue. The ILO Indigenous and Tribal Peoples Convention (169) in Article 6, requires that indigenous and tribal peoples must be consulted on issues that affect them. Article 6, 1(a) provides that the peoples concerned must be consulted through their representative institutions. Secondly, Article 1(b) provides that the government must ensure that the peoples can freely participate and 1(c) states that the government must “provide the resources necessary for this purpose”. Article 6, 2 states as follows: “the 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” (Lillich et al., 2009, pp. 117–118).

The Supreme Court of Chile, in Diaguita v. Goldcorps (7 October 2014), applying state and international law, halted the development of a gold and copper mine owned by a Canadian corporation until the indigenous peoples were properly consulted. The Court, following the ILO Convention of 1989 as to the necessity of consultation, prior to initiating economic development projects affecting indigenous peoples, set forth various guidelines that the Chilean government should follow in consulting with the indigenous peoples in question. These guidelines included:

1. good faith negotiations;

2. the State must determine the impact on the people concerned;

3. to set forth the manner of the consultation;

4. assure participation by the indigenous peoples and other citizens;

5. make a good faith effort to obtain free, prior, and informed consent of the people;

6. the consultation must be in accordance with the peoples’ custom and tradition (“El Morro Mine Halted by Chile Supreme Court”, 7 October 2014, http://www.Reuters.com/article/2014).

The CERD had recommended that the consultation include discussion of an equitable sharing of benefits (UN Doc. CERC /c/ 2/10/2 par. 16). The Chilean Court did not directly address the question of shared benefits or compensation for the taking of property.

In the recent case of Council of Sipacapa v. Guatemala (http://Upsidedownworld.org.2014), a Guatemala appeals court held that Goldcorps mine projects, approved by the Guatemalan government, could not proceed because the government had completely failed to consult with the indigenous people. The peoples concerned had previously voted against the mine in Sipacapa in a popular referendum by a vote of 99% against (Sipacapa has 24,000 residents). The Goldcorps Corporation unsuccessfully challenged the validity of the referendum. Guatemala has established the right to consultation for indigenous peoples in the Guatemalan Constitution, thus implementing the requirement of special measures set forth in the ILO Convention No. 169 and the Declaration of the Rights of Indigenous Peoples.

The Court in the Sipacapa case ordered the Guatemalan government and its corporate allies to pursue a consultation process with the Sipacapa peoples. The consultation would have to be conducted in good faith which means in part the government has to determine if the mining project of Goldcorps would be harmful to the environment. Clearly, an action which has a significant, adverse effect on the physical environment would interfere with indigenous peoples’ “right to enjoy their culture” as well as their property and economic interests, all guaranteed by Article 27 of the Covenant on Civil and Political Rights (1966) (Lillich et al., 2009, p. 51) which was signed by Guatemala and most UN members, including the USA and Canada. There are international and domestic law remedies available to aggrieved persons or groups whose properties and resources have been contaminated by harmful substances produced by development projects.

Regardless of the issue of consent and adequate consultation, indigenous peoples can prevail under international law if the State and its developer allies threaten the physical and cultural survival of the peoples concerned, unless they can show that they have obtained legally recognized consent.

Article 27 of the United Nations Covenant on Civil and Political Rights (1966) supports the rights of indigenous peoples to preserve and enjoy their culture. Article 27 is designed to protect the people from activities harmful to their way of life. There is case law which supports the notion that indigenous peoples’ property, culture, and right to make a living cannot be taken away. These cases include Lubicon Band v. Canada (United Nations Document, 1984, CCPR/C/38/D/167/1984 (1990); United Nations Human Rights Committee, 1984, Communication No. 167/1884); Yaxye Axa Indigenous Community (Inter-American Ct. HR, No. 7502, 2007); Mary and Carrie Dann v. USA (Inter-American Ct. HR, Case No. 11, 140, Report No. 7502, 2002); Mayagna Awas Twingi Community v. Nicaragua (Inter-American Ct. HR, 83101, No. 79, Provisional Measures, 9602, 2001, 2007).

The United Nations Convention on Biological Diversity (1993) in Article 1 made a commitment to “the conservation of biological diversity; the sustainable use of its components and the fair and equitable sharing of benefits arising out of the utilization of genetic resources” (http://www.Int/doc/legal/cdd, retrieved 17 March 2015).

Any state which interferes with, steals, or injures genetic resources of indigenous peoples would be in violation of the Convention on Biological Diversity (http://www.Int/doc/legal/cdd, retrieved 17 March 2015) whether as a signatory or under customary international law. The Convention on Biological Diversity, like the ILO Convention 169 and the Declaration on the Rights of Indigenous Peoples, has provisions for obtaining free, prior, and informed consent. It would appear that if consent is obtained after proper consultation of the peoples concerned, the infringement would be permitted.

Conclusion

Corporations and governments creating “development” rarely provide adequate replacements for subsistence economies which sustain indigenous peoples. Furthermore, such “development” often devastates the health of the people through pollution of their land, rivers, and other resources. International law provides support and an avenue for relief from violation of indigenous peoples’ rights. Protecting indigenous rights also protects the global environment.

Disclosure statement

No potential conflict of interest was reported by the author.