Thank you to all the Conversation Leaders for their time and commitment to taking part in this important conversation. Please take a moment to learn about the conversation leaders by clicking on their profile photos.
Below is a list of questions to serve as a starting framework for the discussion in this thread:
- How do we define ‘indigenous’?
- How do we define ‘ancestral land’ or ‘ancestral territory’? What is the distinction between land and territory? Why are these distinctions important?
- FPIC: What does the ‘C’ mean? Consent vs Consultation.
- Other terminology that requires distinction and definition?
There is no single internationally agreed definition of “indigenous peoples”. Indeed, when tasked with identifying criteria for defining the concept of indigenous peoples nearly 30 years ago, Erica-Irene Daes, (then chairperson of the UN Working Group on Indigenous Populations), avoided coming up with a single comprehensive definition and instead identified particular factors internationally considered relevant to the understanding of the concept of “indigenous”. The four factors she identified are:
- Priority in time with respect to the occupation and use of a specific territory;
- The voluntary perpetuation of cultural distinctiveness;
- Self-identification as a distinct collectivity, as well as recognition as such by other groups;
- An experience of subjugation, marginalisation, dispossession, exclusion or discrimination.
This echoed elements of a previous working definition by the Special Rapporteur for the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, Martínez Cobo whilst the approach can also be seen reflected in the Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169)
The importance of the notion of “self-identification” has been further stressed in General Recommendation VIII of the CERD, which stated that membership in a group “shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned” and the former UN Special Rapporteur on the Rights and Fundamental Freedoms of Indigenous People, which also supported self-identification as a key criterion for determining who is indeed indigenous.
While there is general acceptance of the importance of self-identification in determining who are indigenous peoples, there has been criticism expressed that some of the earlier approaches to identifying who were indigenous peoples placed too much emphasis on original or pre-colonial inhabitants when such a requirement may either not be relevant (e.g. various Asian countries which were not subject to European colonisation) or may not be particularly helpful (e.g. many African countries where all non-European settlers could claim to be indigenous). The African Commission, through its Working Group of Experts on Indigenous Populations/Communities, has examined in depth the question of indigenous peoples within the African context, their human rights situation and criteria for identifying them. In particular, the Working Group observed that:
It is often being argued that all Africans are indigenous to Africa. Definitely all Africans are indigenous as compared to the European colonialists who left all of black Africa in a subordinate position ... However, if the concept of indigenous is exclusively linked with a colonial situation, it leaves us without a suitable concept for analysing internal structural relationships of inequality that have persisted after liberation from colonial dominance.
We should put much less emphasis on the early definitions focussing on aboriginality, as indeed it is difficult and not very constructive ... to debate this in the African context. The focus should be on the more recent approaches focussing on self-definition as indigenous and distinctly different from other groups within a state; on a special attachment to and use of their traditional land whereby their ancestral land and territory has fundamental importance for their collective physical and cultural survival as peoples; on an experience of subjugation, marginalisation, dispossession, exclusion or discrimination because these peoples have different cultures, ways of life or modes of production than the national hegemonic and dominant model.” (Emphasis in original).”
The approach of the Working Group clearly draws on Erica Irene Daes' defintion.
The African Commission directly addressed for the first time in its case law the issue of indigenous peoples rights, in MRG's Endorois case. As with the Working Group, in examining whether the Endorois were an indigenous peoples, the Commission very much rooted its considerations in the reality of the African context:
“While the terms ‘peoples’ and ‘indigenous community’ arouse emotive debates, some marginalised and vulnerable groups in Africa are suffering from particular problems. [The Commission] is aware that many of these groups have not been accommodated by dominating development paradigms and in many cases they are being victimised by mainstream development policies and thinking and their basic human rights violated. The African Commission is also aware that indigenous peoples have, due to past and ongoing processes, become marginalised in their own country and they need recognition and protection of their basic human rights and fundamental freedoms.”
The Commission went on to demonstrate awareness of the “emerging consensus” in relation to “objective features that a collective of individuals should manifest to be considered as ‘peoples’.” Of central importance in seeking to define indigenous peoples, in the Commission’s view, were two principles. First, is the idea of linkages between peoples, their land and culture. Second, is that a group express its desire to be identified as a people or have “the consciousness that they are a people.”
The Commission, then, in Endorois, identified what the overwhelming consensus of international legal opinion asserts to be foundational in defining an indigenous people, namely (i) a specific relationship to a defined territory and (ii) self-identification.
There is no universal definition of indigenous peoples in the United Nations in the same way there is no definition of terrorism or family. While it is true that experts such as Erica-Irene Daes and Martinez Cobo considered a working understanding of indigenous peoples, it was indigenous peoples themselves who did not want to be defined. The view is that indigenous peoples have a preference towards the need to identify, rather than definition. As stated in the above comment, self-identification is very important. Further, the term indigenous is a generic term as within countries and regions there is often a preference for other terms based on first peoples/nations, tribes etc. In the international arena, the term indigenous peoples is often used. However, in the French language the term indigene is derogatory and the term used is peuples autochtone.
While reading the threads in this series of conversations I noticed the use of the term indigenous peoples and local communities. This is been an area of contention for indigenous peoples because local communities can be any community and often do not comprise of indigenous peoples. There is also the feeling that lumping indigenous peoples with local communities takes away from recognizing the rights of indigenous peoples.
What is your view on this?
Indigenous peoples’ rights to free, prior and informed consent (FPIC) were developed after demands from the global movement of Indigenous Peoples.
The concept of FPIC is set out in CERD’s General Recommendation no. 23 (1997) and the UN Declaration (UNDRIP). UNDRIP asserts, in Article 10, that:
“Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.”
UNDRIP also protects Indigenous peoples' right to FPIC in other situations. States must consult with and seek to obtain the consent of the Indigenous People before implementing a legislative or administrative measure which may affect them, including in the case of projects affecting their lands, territories and other resources (Articles 19 and 32 UNDRIP).
Indigenous peoples are entitled to redress when States have acted without their free, prior and informed consent; this applies to the taking of their cultural, intellectual, religious and spiritual property and when “the lands, territories and resources which they have traditionally owned or otherwise occupied or used” … “have been confiscated, taken, occupied, used or damaged” (Articles 11 and 28 UNDRIP).
In the case of proposed military activities on indigenous lands, these shall not take place “unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned” and “States shall undertake effective consultations” with the peoples concerned prior to undertaking them (Article 30 UNDRIP).
FPIC rights have also been established in decisions of the UN Human Rights Committee[1], the Inter-American Court of Human Rights[2], the African Commission on Human and Peoples’ Rights[3] and are enshrined in policies of UN agencies[4] and UN treaty body general comments[5].
Consent - not consultation: considering impact
The essential factor to consider when seeking indigenous FPIC is the potential impact and/ or harm to the rights of indigenous peoples. So, FPIC rights are not just about process – a means to protecting other rights – but are also an expression of indigenous peoples’ right to self-determination: the right to have a say in decisions regarding their land and decisions which might affect them. One of the most important purposes of FPIC is to identify possible damage that might be caused by a development project, for example, and suitable ways that such damage can be mitigated. The duty to seek FPIC therefore falls on both the state AND the project developer.
The Inter-American Court of Human Rights has established that informed consent for development or investment plans is required where those projects “may have a profound impact” within indigenous territories.[6] In its 2008 judgment in the Saramaka case, the Court elaborated on the applicable standard, stating that:
“ … depending on the level of impact of the proposed activity, the state may additionally be required to obtain consent from the Saramaka people. The tribunal has emphasized that when large-scale development or investment projects could affect the integrity of the Saramaka people’s lands and natural resources, the state has a duty not only to consult with the Saramaka's, but also to obtain their free, prior and informed consent in accordance with their customs and traditions.”[7]
“Significant impact" on indigenous peoples requires consideration of the nature, scale, duration, and the long-term impact of the action – such as relocation, damage to community lands, or harm to the community’s cultural integrity. In the Saramaka case, the Inter-American Court noted that environmental and social impact assessments need to address the “cumulative impact of existing and proposed projects. This allows for a more accurate assessment on whether the individual or cumulative effects of existing or future activities could jeopardize the survival or indigenous or tribal people".[8]
As for the consent process itself, the indigenous peoples' own internal decision-making processes need to be respected, and all the voices of groups within a community (eg women, people from different geographical locations) need have been included.
[1] UN Human Rights Committee, Ángela Poma Poma 27/3/2009, Communication No. 1457/2006.
[2] A number of judgements including Saramaka People v. Suriname, Judgment of the Inter-American Court of Human Rights, 28 November 2007
[3] Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 276/2003, African Commission on Human and Peoples' Rights, 4 February 2010.
[4] See The UN Development Programme and Indigenous Peoples: A policy of engagement (2001): “Consistent with United Nations conventions such as ILO Convention 169, UNDP promotes and supports the right of indigenous peoples to free, prior informed consent with regard to development planning and programming that may affect them.” at para 28, page 7. See also the Guidelines on Indigenous Peoples’ Issues developed by the United Nations Development Group which also recognize informed consent and self-determination. See also the UN Food and Agriculture Organization Policy on Indigenous and Tribal peoples: “FAO’s objectives for engagement with indigenous peoples are formulated in light of its expertise and in recognition of the rights to which indigenous peoples are entitled under international law. Consultation and free, prior and informed consent will be sought when FAO projects directly affect indigenous peoples.” at p 14.
[5] Committee on Economic, Social and Cultural Rights General comment No. 21 Right of everyone to take part in cultural life para 36, and UN Committee on the Elimination of Racial Discrimination, General Recommendation XXIII: Indigenous Peoples para 5
[6] Saramaka People v. Suriname, op cit., para. 134. See also para. 137 (explaining that consent is required for “major development or investment plans that may have a profound impact on the property rights of the members of the Saramaka people to a large part of their territory”).
[7] Saramaka People v. Suriname. Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs. Judgment of 12 August 2008. Series C No. 185, para. 17.
[8] Ibid, para. 41. See also See UN Expert Mechanism on the Rights of Indigenous Peoples, Advice No 2 (2011): Indigenous peoples and the right to participate in decision making, Para 22
What is the best operational FPIC standard you have seen, regardless of sector?
There is a good report looking at the aplication of FPIC mainly in the context of extractive industries, the report is entitled "Making Free, Prior and Informed Consent a Reality" and is available at: http://solutions-network.org/site-fpic/files/2012/09/Making-Free-Prior-I...
Jeremie,
I found the document you shared a very interesting read. I thought the section regarding the "challenges faced by indigenous peoples" (on pages 24-25) were particularly telling regarding the barriers to making FPIC a reality. Here are some of the key challenges outlined (in brief) from that section of the document. Please note that the emphasis below is mine:
I would like to share with you 3 different documents developed by ILC members on FPIC implementation:
a) FAO practical guidance for governments, companies, NGOs, indigenous peoples and local communities in relation to land acquisition: http://www.fao.org/3/a-i3496e.pdf
b) IFAD note on How to seek free, prior and informed consent (FPIC) in IFAD investment projects: https://www.ifad.org/documents/10180/beec86e1-270d-45a1-8786-4b749c9db733
c) There is also a good training manual on Free, Prior and Informed Consent (FPIC) in REDD+ for Indigenous Peoples, produced by AIPP and IWGIA.
David,
I found these documents very interesting and provided a good comparison particularly in the areas of "INFORMED" and "CONSENT":
Are there aspects that you, or others, feel are still missing and should be included or especially highlighted?
In his report on Report on Extractive industries and indigenous peoples (A/HRC/24/41), the former Special Rapporteur on the rights of indigenous peoples, James Anaya stated: "The principle of free, prior and informed consent, arising as it does within a human rights framework, does not contemplate consent as simply a yes to a predetermined decision, or as a means to validate a deal that disadvantages affected indigenous peoples. When consent is given, not just freely and on an informed basis, but also on just terms that are protective of indigenous peoples rights, it will fulfil its human rights safeguard role."
Thanks for sharing all these links, they are really useful and practical. In my view, there is a clear link between FPIC and the UN Guiding Principles on Business and Human Rights , which require in particular that businesses have a human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights. The Inter-American Court of Human Rights recently recognised the importance of the Guiding Principles in its decision Kalina and Lokono Peoples v Suriname; however there is still a significant challenge in ensuring that companies respect these standards and therefore protect indigenous peoples' rights. Does anyone have any good examples where companies and international investors have complied with their duty to respect FPIC, or even where communities have been able to successfully hold them to account afterwards?
Thanks for these documents. They are all very insightful and useful.
Many of them discuss the efforts of individual companies, or are guidelines with general principles. But I am wondering if there are any more rigorous standards (with certification) for the private sector that have been successful in ensuring FPIC? I believe Fair Trade has tried to incorporate FPIC in some areas, Equitable Origin has done for oil and gas, and I'm sure there are some for mining or timber. What in your experiences are the most successful industry standards and/or certification schemes that encourage FPIC?
Going back to question raised by Brent regarding the distinction between 'ancestral land' and 'ancestral territory'.
My understanding of the distinction is that ancestral territories include the natural resources, the cultral practices and the total environenment of the territory, whereas land is often understood in more restrictive fashion as only concerning the property of the land itself. Since under most national legal systems there is disctinction made between property rights to land and property over natural resources, it is importanant to highight that for indigenous peoples the notion of territory is essential as it includes cultural pratices and access and control over natural resources as well as their right to the land.
In terms of international law, the issue was raised during the debates that led to the adoption of the ILO Convention 169. It was made clear by indigenous representatives that ancestral territories were to be covered by the convention, and not only land rights. This is the approach adopted by the convention.
That's my take on this, but would be good to get other perspectives on this issue.
Dear Jeremie
Thanks for providing your initial input on yet another great area highlighted for consideration, discourse and possibly action.
I would agree with you on the distinction which has been drawn between ancestral (or should I say "traditional" or "customary" but I shall leave that discussion for another time) "lands" and "territories" in the literature and commentary on the subject. In some ways, the distinction clarifies the spatial extent of Indigenous occupation, use and enjoyment of lands and resources.
However, do essentialist distinctions between the two words necessarily clarify the diversity and complexity of Indigenous land tenurial concepts both internationally and domestically?
Linking the word "land" to "rights" risks defining Indigenous land tenurial concepts through the lens of Western conceptions of property, more popularly known as attempting to fit a square peg into a round hole.
Also, the use of fixed labels to define Indigenous land rights may potentially function to legally stigmatise or penalise domestic or indigenous uses of the word "territory" and the like, as such terms may be viewed as not carrying with them "property rights".
Such issues are not uncommon. In the case of the Peninsular Malaysia Orang Asli, Orang Asli-inhabited geographical areas are known in State practice as: (i) settled areas; and (ii) roaming areas for hunting and foraging activities. In addition to the fact that both terms do not accurately reflect the land customs and diversity of the 19 officially recognised Orang Asli sub-groups, the Malaysian courts have been grappling with the issue of the extent of common law recognition to be given to these two externally imposed terms over the past fifteen years.
The issue is still alive despite the Malaysian Court of Appeal holding that the nature of a customary title at common law should be determined in accordance with the customs and usages of the individual community (see Kerajaan Negeri Selangor v Sagong bin Tasi [2005] 6 MLJ 289, at 301). At least in the case of Peninsular Malaysia, the tendency to compartmentalise Indigenous tenurial concepts into more familiar legal terms still appears to be a hard habit to kick.
That said, I am however of the firm view that the word "territory" is a necessary addition to the word "land" in Indigenous advocacy and engagement efforts and international documents as it aids a better appreciation of the diverse and complex spectrum of Indigenous geographical space concepts and connections.
Thank you Yogeswaran,
I agree with your considerations. Indigenous peoples do not have rights only to the land they directly cultivate or inhabit, but to the broader territory, encompassing the total environments of the areas which they occupy or otherwise use, inclusive of natural resources, rivers, lakes, and coasts. Their rights to land and natural resources require special attention, as these are fundamental to securing the broader set of rights related to self-management and the right to determine their own priorities for development. In the case Case of the Yakye Axa Indigenous Community v. Paraguay, the Inter-American court of Human Rights remarked that: "146.... States must take into account that indigenous territorial rights encompass a broader and different concept that relates to the collective right to survival as an organized people, with control over their habitat as a necessary condition for reproduction of their culture, for their own development and to carry out their life aspirations.... 147. Disregarding the ancestral right of the members of the indigenous communities to their territories could affect other basic rights, such as the right to cultural identity and to the very survival of the indigenous communities and their members. ".
The Declaration (and other instruments either developed by indigenous peoples or the State Members as the Alta Document or the Outcome of the WCIP) seems to tend to not separate the notion on IPs "lands, terriotries and resources" as a whole set of rights as land tenure, ownership, use, administration and control. In the Alta Document indigenous peoples extended this notion to "Indigenous Peoples’ lands, territories, resources, oceans and waters "
Agree Fernando that indigenous peoples populations have grown over the years for a number of reasons. I think your point about indigenous peoples in the cities is a trend that is happening all over the world. There are a number of push and pull factors as to why indigenous peoples are moving to urban areas and includes land dispossession, displacement, military conflicts, deterioration of traditional livelihoods, better health, ecuation and economic opportunities in cities and perhaps a way out of poverty. At the same time, many indigenous peoples maintain close ties with their communities or origin, by sending back to families, visiting home during important ceremonies and funerals etc. hence, people living in urban areas maintain their indigenous identities for generations. I think we have to remember that indigenous identity if fluid and dynamic. There are reports on this matter on the Permanent Forum website (Permanent Forum session in 2007).
My views of indigenous refers to belonging to a place since time immemorial. There is also element of distinction of the group from mainstream be it in the form of dressing , cultural practices etc.Additionally in being Indigenous there is also element of size of population for instance due to forced assimilation into dominant communities Indigenous People may be at risk of extinction , loss of language and erosion of their distinct culture.
In addition, there is the element of discrimination towards Indigenous People, in many instances there has always been economic and social exclusion and being treated as "backward".In some cases they even lack political representation.
Consent is to agree to something, for instance if a developer is coming to a given land, consent implies that the community has agreed for the developed to develop the land. Consultation on the other hand is where communities more so in territories where natural resources abound such as Oil in Turkana, the affected people on whose land these minerals are being have been discovered should be brought together to give their views on how best those resources should be exploited .It is also about discussions on the effects of prospecting and actual mining of natural resources issues such as environmental pollution, displacement, compensation, relocation and so on.Moreover, in consultation, the affected community or potentially affected community is given opportunity to decide whether the natural resource will be drilled in their territory or not.
In an ideal situation , consultation implies that power lies not in the hands of Trans National Corporations and governments who force communities to give up their land , or forcefully evict their citizens in the most inhumane ways which also involve torching of houses and arrests , but where the rights of communities in which these natural resources are discovered are upheld and respected.
Ancestral land in my view refers to demarcated spaces belonging to a given family passed down from one generation to the other.For example if a piece of land belonged to a family and has been passed on from the great great grandfather , to the great grandfather to the current generation.This I think also referred to family land.Eg if Kiplagat is a Sengwer in Embobut forest , the land he occupies has been transferred over the family lineage for a long period of time, then that is ancestral land
Ancestral territory on the other hand is a shift from an individual family to a peoples eg the Sengwer community occupy Cherangani Hills in Kenya , Cherangani hills is therefore georgraphically this particular community used to occupy collectively , this is thus their ancestral territory.
These distinctions are important because its individuals who eventually make the collective.The Sengwer for instance become a community when groups of individual families come together.In my view collective level is more powerful in terms of organizing than at individua level.
Demanding change at individual level is a bit difficult compared to demanding change as collectives.In some instances there have been cases in Embobut Forest where individual families have been compensated.This has posed a challenge in that not each and every family got compensation hence some have relocated while others continue to survive on the edges of the forest.