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Convention No. 169 emphasizes the shift in the conceptual approach to Indigenous and tribal peoples towards one based on respect for their specific identity "...and their right to participate in the decision-making process in all questions and programs directly affecting them, that is to say, to participate in the making of decisions and the determination of their own destiny." The Convention has 32 operative articles and is based on two fundamental concepts: consultation and participation. It is premised on the belief that Indigenous and tribal peoples should have the right to be consulted when legislative and administrative measures which may affect them are being considered; that they should have the right to participate at all levels of decision-making concerning them; and that they should have the right to decide their own development priorities. In addition there is a requirement for prior impact assessment studies to assess the social, spiritual, cultural and environmental implications of any planned development activities on these peoples (Article 7).
The Convention addresses issues of vital importance to Indigenous and tribal peoples including the rights of ownership and possession over the lands they traditionally occupy, or have had access to (Article 14); the rights to natural resources including the right to participate in the use, management and conservation of such resources (Article 15); displacement (Article 16); land alienation (Article 17); unauthorized intrusions (Article 18); agrarian programs (Article 19); recruitment and conditions of employment (Article 20); vocational training, handicrafts and rural industries (Articles 21 to 23); social security and health (Articles 24 and 25); education (Articles 26 to 31) and cross-border co-operation (Article 32).
Eight years after the adoption of Convention 169 concerning Indigenous and Tribal Peoples by the International Labor Organization (ILO), the flames of controversy smolder on. The Convention has been criticized for not fully embodying the Indigenous point of view. There are even those who imply that the wording of the document is a direct affront to the rights of Indigenous peoples. Directly after the adoption of Convention 169 by the ILO, the Indigenous Peoples Preparatory Meeting in Geneva produced a resolution rejecting Convention 169 and asking governments not to ratify it. Yet despite its arguable shortcomings, most Indigenous leaders and organizations see the Convention as an important step towards an improvement of their human rights situation and are eager for governments to ratify it.
The controversy surrounding this Convention continues to demand closer inspection. It is therefore necessary to analyze to what extent the Indigenous aspirations are reflected in Convention 169. It was not possible to reprint the document in its entirety in Abya Yala News due to space constraints nor is it possible to examine each article of the convention. There are however, a few elements of the Convention that need special attention.
One of the biggest bones of contention was the inclusion of the term "peoples." Convention No.107 of 1957 used the term "populations" and Indigenous rights organizations were pressing to replace "populations" by "peoples," to reflect the fact that these Indigenous cultures are organized societies with their own distinct identity. However, most governments were not willing to accept peoples because of the implication it would have under international law. Important international treaties like the International Covenant on Civil and Political Rights (1966) refer to the right of self-determination, by stating that "all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." Most governments fear that granting the right of self-determination to these "peoples" will allow them the right to succeed under international law. By not recognizing Indigenous peoples as such, they will not be able to invoke these international treaties and declarations that discuss the right to self-determination that all peoples have. In this regard, Convention 169 reflects the governments' point of view. Therefore, after much debate it was decided that the "use of the term 'peoples' in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law" (Article 1). Qualifying the term peoples means discriminating between non Indigenous peoples as recognized by international law and Indigenous peoples who are denied the right of self-determination. In this aspect, the qualification contradicts article 35 of the Convention, which states that "the application of the provisions of this Convention shall not adversely affect rights and benefits of the peoples concerned pursuant to other Conventions and Recommendations, international instruments, treaties, or national laws."
One of the main objections to Convention 107 was its integrationist approach; it was assumed that Indigenous societies were dissolving and Indigenous people would eventually assimilate into the national society. Therefore, the concept of assimilation was to be replaced by terms that reflect the vision that Indigenous peoples deserve the right to survive, indeed to thrive. To ensure a high degree of recognition of Indigenous peoples' rights, the inclusion of the term consent and control in the new Convention was advocated. Most governments and employers representatives opted for the terms: participation and consultation instead, concepts that still assume outside initiatives coming from the government and not from Indigenous peoples themselves. Consultation and participation prevail throughout the Convention. The problem remains over how consultation and participation should be interpreted. An example of this wording appears in Articles 6 and 7, two central policies of the Convention. Article 6 requires the government to "consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly." This article goes on to state that 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." Article 7 is equally as vague with its reference to (Indigenous peoples) right to "participate in the formulation, implementation and evaluation of plans and programs for national and regional development which may affect them directly."
It should be noted that Indigenous and Tribal peoples do not have the right of veto over development policies. Many Indigenous representatives feel that their lack of veto power allows governments to much freedom to do as they please. According to these two articles, it is the responsibility of the government to create the atmosphere which allows Indigenous people to contribute their ideas. The government must inform Indigenous peoples about proposed projects by providing them with the relevant information.
From the Indigenous point of view the term territories should be used to cover all lands and resources belonging to Indigenous peoples. Hard-line government representatives were not willing to accept this, since this would affect the national integrity of the state. Article 13 uses the compromise "the lands or territories, or both as applicable." Article 14 is crucial because it deals with "the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy." Apart from the fact that occupy seems more suitable to be used in relation to invasions in times of war than when referring to Indigenous peoples, the use of this term in the imperfect tense appears to be an attempt to avoid recognition of these rights based on past "occupation."
Article 15 is a recognition of the governments' point of view that the state will always have the last word on the natural resources. With its claim that the rights of Indigenous peoples to the natural resources pertaining to their lands shall be "specially safeguarded, including the right of these peoples to participate in the use, management and conservation of these resources", this article seems to contradict article 14. If Indigenous peoples already own and possess their lands (art. 14), how can they be given the right to participate in the use, management and conservation of the resources (art.15)? This can only be the case when the state retains the sovereignty over all the natural resources, no matter if these resources pertain to Indigenous lands or not. Because access to subsurface resources normally requires the purchase or lease of the surface area above and Indigenous peoples are often prohibited from owning land or do not have official land titles, the Indigenous representatives suggested to the ILO that they be granted control over the subsurfaces to alleviate problems in the future. This proposal was met with fierce opposition by many governments and employer representatives.
From the Indigenous perspective, the heavy use of qualifications throughout Convention 169 has made it a lot weaker. The best example of this practice, which is very common in international law, is Article 16 which deals with the issue of relocation and is riddled with qualifications. Where relocation of Indigenous peoples is necessary, this shall only take place with Indigenous consent. Where this is not possible, appropriate procedures, including public inquiries, where appropriate, must be undertaken. Whenever possible, the peoples shall return to their lands, if such a return is not possible, they shall be provided with alternative lands in all possible cases. All of these qualifications leave a lot room for interpretation.
Convention 169 is a great improvement on the previous convention dealing with Indigenous peoples, but it has not totally succeeded in abolishing the integrationist approach of Convention 107. Articles 8 and 9, dealing with Indigenous customs and customary law, are good examples of this. Article 8 guarantees Indigenous peoples the right to retain their own customs and institutions, where these are not incompatible where Customs and customary law shall be recognized as long as they are not conflicting with national laws and regulations. This means that recognition will only follow if these customs are compatible with the national law, for this to happen a lot of customs and customary rules will have to be adapted.
Convention 169 does not reflect the wishes of Indigenous peoples regarding their recognition as peoples, the issue of territories, nor does it include the concepts of consent and control. So in this sense one might conclude that Convention 169 is not a great step forward in the recognition of the rights of Indigenous peoples. On the other hand, it was necessary to provide for a lot of diverse situations worldwide and agreement could not be always be reached on many of these issues. It was obvious that the governments were not going to ratify the Convention if it was so strong that it would require them to change their legal systems; and without ratifications there are no obligations or standards at all. It is important to remember that ILO Conventions are minimum standards and that no governments can ever create new legislation based on Convention 169, and thereby disregard national regulations that grant more extensive rights. Convention 169 is one of the instruments which stands along side the national regulations and legal framework. The ILO has proven to have built up quite an expertise on Indigenous issues, starting with the adoption of Convention 107 in 1957. This knowledge, together with the supervisory procedure, has the capacity to contribute to an improving human rights situation for the world's Indigenous peoples.