Scales of Governance and Indigenous Peoples' Rights

New Rights or Same Old Wrongs?

Irene Bellier, Jennifer Hays, Irene Bellier, Jennifer Hays

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781317371496
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book takes an interdisciplinary approach to the complicated power relations surrounding the recognition and implementation of Indigenous Peoples' rights at multiple scales.

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples in 2007 was heralded as the beginning of a new era for Indigenous Peoples' participation in global governance bodies, as well as for the realization of their rights – in particular, the right to self-determination. These rights are defined and agreed upon internationally, but must be enacted at regional, national, and local scales. Can the global movement to promote Indigenous Peoples' rights change the experience of communities at the local level? Or are the concepts that it mobilizes, around rights and political tools, essentially a discourse circulating internationally, relatively disconnected from practical situations? Are the categories and processes associated with Indigenous Peoples simply an extension of colonial categories and processes, or do they challenge existing norms and structures? This collection draws together the works of anthropologists, political scientists, and legal scholars to address such questions. Examining the legal, historical, political, economic, and cultural dimensions of the Indigenous Peoples' rights movement, at global, regional, national, and local levels, the chapters present a series of case studies that reveal the complex power relations that inform the ongoing struggles of Indigenous Peoples to secure their human rights.

The book will be of interest to social scientists and legal scholars studying Indigenous Peoples' rights, and international human rights movements in general.

Part I

Circulating between the scales

The global, the national, and the local

1 Participation of indigenous peoples in issues affecting them

A matter of negotiation at the United Nations

Irène Bellier ¹

The United Nations (UN) holds a unique place in the constellation of stakeholders in an international movement that aims to secure the representation of indigenous peoples, and their “participation in issues affecting them.”² This ultimate global institution, where visitors meet the diversity of the world, is an extremely complex space, far removed from any indigenous environment, with its own regulations and a vast labyrinth of action networks, interconnected mechanisms and decision-making bodies to which only international officials hold the keys. Nonetheless, indigenous peoples that participate in UN meetings – whether as experts or delegates, involved for many years in international talks or simply as occasional visitors – think they can have some influence at the UN. This is because, in the late 1970s, the UN established structures for examining issues affecting indigenous peoples, which opened up an epistemological and legal political space for considering the definition of this particular category, and handling of these questions. Since the early 1980s, the participation of indigenous peoples has been the object of renewed discussion, and since 2010 the issue has been under consideration by the United Nations General Assembly (UNGA). This chapter examines the various ways in which indigenous peoples’ representatives have been involved in issues that are affecting them since they first appealed to the UN to define their rights. I will concentrate on the changes that have occurred since the adoption of the UN Declaration on the rights of indigenous peoples, in 2007.

1 Translated by Cadenza Academic Translations, revised by Jennifer Hays, and the author.

2 This expression is commonly used at the United Nations.

Background

Several UN bodies welcome indigenous delegations, who represent 90 countries, some 5,000 languages, and an estimated 400 million people.³ The examples I will present in this chapter bear the hallmarks of the protocols defined by the UN member states, but function according to modalities that differ from those of national politics. These examples depict representatives of indigenous peoples, men and women, young and old, holding discussions with representatives of member states, and in particular with those from their own states. Indigenous delegates work with international officials, participate in global dialogue, and establish alliances with non-indigenous organizations. During the last decade or so, some have taken on major responsibilities including the roles of UN Special Rapporteur and President of the UN Voluntary Fund for Indigenous Peoples, as well as acquiring membership of UN Programme administrative boards.

3 The UN calculated the figure of 370 million people in the 1980s, but their services were unable to carry out a precise global census. The Scales of Governance & Indigenous Peoples (SOGIP) website hosts a map showing the world distribution of indigenous peoples, with information on the names of these peoples, and their demography compared to state or regional populations, based on data provided by the official sites (national census) or by various non-governmental organizations such as the International Work Group for Indigenous Affairs (IWGIA), in instances where such data is not available. View the map at http://www.sogip.ehess.fr/ and http://www.sogip.ehess.fr/squelettes/cartes_sources.pdf.

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was developed and negotiated at length within the sector of the institution focused on human rights and was finally adopted by the UNGA in September 2007 (Charters and Stavenhagen 2009; Bellier 2012a). Based on my observations,⁴ I consider the part of the UN where indigenous issues are at the heart of debate as a kind of “matrix” in which the participation of indigenous peoples is the driving force of developments – in this paper, the term matrix refers to this specific space. This space represents a model that the most senior indigenous delegates desire to both improve and reproduce within the UN.

4 In my academic work on indigenous peoples’ rights, I have followed (and continue to follow) the annual meetings of several UN bodies, for working sessions lasting one to two weeks: in Geneva, from 2002 to 2006, the Working Group on Indigenous Populations (WGIP), created in 1982, and the Working Group on the Draft Declaration (WGDD), created in 1995, both of which were dissolved after the adoption of UNDRIP by the Human Rights Council in 2006; in New York, since 2002, the United Nations Permanent Forum on Indigenous Issues (UNPFII); and in Geneva, since 2008, the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP). This work has involved participating in plenary sessions, parallel events, and indigenous assemblies (caucuses) which are an informal part of the United Nations but have been essential in building the international indigenous movement and developing a shared knowledge base.

In addition, since the first Earth Summit (Rio Conference, 1992), indigenous delegations have been actively engaged in discussions about the future of the planet, including debates surrounding sustainable development and climate change, in their capacity as one of the nine major groups of “civil society” consulted by “the international community” (the member states) on a regular basis. In this wider context, they mobilize techniques of participation and internal decision-making developed in the matrix, but are also confronted by the inherent limits of these conferences, in which they are only one of many stakeholders. Although indigenous delegations are indeed consulted, their members have great difficulty securing involvement with preliminary proceedings (the drafting of outcome documents, for example) and struggle to assert their desires in negotiations controlled by the representatives of member states. The final outcome documents sometimes contain only one of the numerous points that indigenous representatives wanted to include. In negotiations over the content of such documents, the symbolic fight for the inclusion of terms carrying global significance, such as “the rights of indigenous peoples,” is extremely fierce.

In 2010, the UNGA decided to hold a high-level plenary session on indigenous peoples as part of the conclusion of the Second International Decade of the World’s Indigenous People. This project, announced at the tenth session of the UN Permanent Forum on Indigenous Issues (UNPFII), in 2011, provoked a strong reaction from indigenous peoples. Bolstered by the advances resulting from UNDRIP and the right to self-determination that it recognized, they called for the conference to be organized with indigenous representatives, using the slogan “Never again without us.” This resulted in a meeting of the General Assembly that, for the first time in the history of the UN, was organized with the “full and complete participation” (in UN language) of indigenous peoples. The full description of this conference was the “High-Level Plenary meeting to be known as the World Conference on Indigenous Peoples” (HLPM/WCIP).⁵ This act of undeniable symbolic power turned over a new page in the history of the relationship of indigenous peoples with the international community. This conference resulted in an “outcome document,” which was adopted in September 2014 (UN 2014), and which completes the provisions of the UNDRIP for involving member states as well as the whole UN system – its agencies, programs, and funds – in the global implementation of the rights of indigenous peoples. The two declarations have the same legal value and complement each other, and they expressly mention the issue of participation to meetings “on issues affecting them”: in Article 41 of UNDRIP, and in paragraph 33 of the document adopted by the HLPM/WCIP.⁶

5 This long expression comes from the UN lexicon, and its terms specify the hybrid character of the organization to which the international movement has demanded and obtained association.

6 Article 41 of the UNDRIP says: “The organs and specialized institutions of the United Nations system and of other intergovernmental organizations contribute to the full implementation of the provisions of the present Declaration through, in particular, the mobilization of financial cooperation and technical assistance. The methods of ensuring the participation of indigenous peoples in discussions of issues affecting them must be put in place.”

Paragraph 31 of the outcome document says: “We commit to consider, at the 70th session of General Assembly, ways to enable the participation of indigenous peoples’ representatives and institutions in meetings of relevant United Nations bodies on issues affecting them, including any concrete proposals made by the Secretary General in response to the request in OP40.”

Through an exploration of these different situations involving the international movement of indigenous peoples, and the current debates about how their participation might be improved, this chapter seeks to explain the organizational forms of the movement and examines in more detail the general characteristics of the participation of indigenous delegates in relevant decision-making processes, and the policy domains in which they are involved. The first section locates the UN space dedicated to the examination of “issues affecting them” and outlines the kind of alliance that indigenous delegates can form there with state, non-state, and international actors. The second section deals with the modes of participation of indigenous peoples in discussions held by the UN in the areas of sustainable development and the fight against climate change. The third section considers the implications of the HLPM/WCIP for indigenous peoples’ “participation in issues affecting them,” which, since September 2015, has been the object of an intense consultation process and of debates held by UNGA itself.

The UN: an experimental matrix for indigenous peoples

The indigenous peoples’ movement, which emerged at the end of the 1970s, strives for recognition of the rights of populations formerly or currently dominated by colonial states, and for their implementation as outlined in UNDRIP. Its development has required the establishment of a base of understanding regarding the definition of indigenous peoples and identification of the problems they face, both of which are grounded in the pioneering study led by Ecuadorian sociologist José Martínez Cobo, who in 1971 was named Special Rapporteur of the United Nations on the problem of discrimination against indigenous populations by the former Commission on Human Rights.⁷ This work was followed by studies carried out by members of the Sub-Commission on Prevention of Discrimination and Protection of Minorities,⁸ as part of the Working Group on Indigenous Populations (WGIP). A number of reports issued by this body focus on the particularly complex themes raised by the status of indigenous populations, who are neither state actors nor strong economic actors, and not simply “minorities” or sections of civil society. Of particular note was the “Study on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Populations” (Martínez 1999) and the report “Indigenous Peoples’ Permanent Sovereignty over Natural Resources” (Daes 2004), which raised the issue of relationship to the land.⁹ The Martínez report explores the validity of the “nation to nation” relation involving the treaties signed between representative powers of the current state and its (still living) peoples on the territory to which they apply. The Daes report focuses on sovereignty, a politically sensitive term recalling that, by law, the member states cannot deprive peoples of resources that are necessary to their existence. These two reports, in particular, examine the nature of the relationship between these populations and the notion of territory in the light of international law, as well as the current value of the relations established by acts that were legal at the time of conquest or invasion.¹⁰ Both go straight to the heart of the issue of recognition by member states and the international system of these populations as “indigenous peoples,” a term proposed by Martinez Cobo in the first working definition.

7 The Commission on Human Rights was, from 1946 to 2006, the principal organ of the United Nations Economic and Social Council charged with human rights issues. It was composed of 53 members. It has been superseded by the Human Rights Council, which is composed of 47 members directly elected by the UNGA.

8 This body changed its name in 1999 to become the Sub-Commission on the Promotion and Protection of Human Rights. It was dissolved in 2006 as part of the reform which led to the establishment of the Human Rights Council.

9 The relationship to the land, examined by the UN and elsewhere at a judicial and political level, manifests itself as a series of imagined ontological projections of relation between man and nature, which indigenous peoples link to “spirituality” and thus establish their symbolic link with “Mother Earth” (cf. Bellier and González 2015). This link establishes the relation between “life” and “culture” that indigenous delegations desire to see handled at a political level.

Birth of a relational political category

The work carried out between 1973 and 1986 by Augusto Willemsen-Diaz, a Guatemalan official at the UN who helped Martínez Cobo to identify the problem, was presented in five volumes and led to a working definition.¹¹ This definition was based on a multi-criteria approach capable of resisting the essentialist paradigm of “the indigene;”¹² in particular, it recognized the existence of indigenous “cultural patterns,” “legal systems,” and “social institutions.” They are, as the rapporteur says:

peoples and nations … which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them … [and which] 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 system. (Martínez Cobo 1986)

These notions of patterns, systems and institutions are important to recall, because the states have based their domination of indigenous peoples on the denial of exactly such forms of organization.

10 See also the study carried out by Tonya Gonnella Frichner on the Doctrine of Discovery, at the request of the UN Permanent Forum (Gonnella Frichner 2010).

11 This pioneering study within the United Nations system, on the theme of discrimination against indigenous populations, was ordered by the Economic and Social Council in 1971 and completed in 1985. The main chapters derive from the reflections of the WGIP, from 1982, and the collection was then published by the United Nations. It can be consulted in facsimile form.

12 For more on the semantic charge of the terms “indigenous” and “autochthon” as utterances, see Bellier (2009a, 2009b).

The International Labour Organization (ILO) had already produced elements of this definition, but its Convention 107, passed in 1957, is marred by a ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Acknowledgments
• Indigenous peoples’ rights: global circulation, colonial heritage, and resistance
• Part I Circulating between the scales: the global, the national, and the local
• Part II Colonial legacies
• Part III Resisting processes of invisibilization