Pritchard, Sarah --- "Globalisation & Indigenous peoples" [2000] ALRCRefJl 6; (2000) 76 Australian Law Reform Commission Reform Journal 29

---

Reform Issue 76 Autumn 2000

This article appeared on pages 29 - 32 & 103 of the original journal.

Globalisation & Indigenous peoples

By Dr Sarah Pritchard*

This note identifies some of the major normative developments since 1945 that have had implications for Indigenous peoples. In recent decades, international law, once an obliging instrument in the expansion of empire, has been affected by complex integrative trends, which have diffused the political and economic power of even the most powerful states.

These trends include the globalisation of capital markets, transnational flows of peoples, data, culture and drugs, the proliferation of modern information systems and communications technologies, and the threat of environmental degradation. Trade, in particular, has become a major concern of developed states as they compete for markets, including in the area of technology in which intellectual property rights play an increasingly critical role.

The international legal regime has also been challenged by the emergence of global movements of non-state actors, which have challenged the international community to develop normative responses to issues not previously thought to require international cooperation. These civil society actors have advocated the development of transnational human rights regimes, and regimes to tackle questions related to peace, overpopulation, hunger, debt and the environment. In recent years, Indigenous peoples have called for an international normative response to issues arising from their specific historical experiences, distinct identities and historical experiences.

In four areas, international normative developments have had a particular impact upon Indigenous peoples: in the areas of Indigenous peoples’ rights, human rights, the environment, and trade and finance.

Indigenous peoples’ rights

There can be little doubt that the most transformative and liberating developments have been those specifically concerned to enumerate international standards concerning the rights of Indigenous peoples. Until recent decades, international law had, at different times, addressed the processes by which title to Indigenous peoples’ territories can be acquired. However, the question of Indigenous rights upon the completion of territorial acquisition had not been the subject of international legal discourse.

Two main developments have been specifically concerned with the political and legal systems, land and resource rights, and cultural, spiritual and linguistic identities of Indigenous peoples:

• The United Nations Draft Declaration on the Rights of Indigenous Peoples; and

• The International Labour Organisation Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No 169).

The UN Draft Declaration addresses a wide range of rights, including rights relating to self-determination, identity, development, land and resources, law and custom, and institutions of self-government. The Draft Declaration was elaborated by the independent Working Group on Indigenous Populations (WGIP) between 1985 and 1993. It was adopted by the WGIP’s parent body, the independent Sub-Commission on Prevention of Discrimination and Protection of Minorities, in 1994. It has been under consideration in a working group of the inter-governmental Commission on Human Rights since 1995. It is uncertain whether, some would say unlikely that, the Draft Declaration as it currently stands will be adopted by the Commission on Human Rights and eventually the UN General Assembly. However, irrespective of its formal juridical status, there are signs that the Draft Declaration is having an impact on law and policy in some countries, as well as on the practice of international and regional bodies and agencies. Most significantly, the Draft Declaration possesses significant legitimacy in the eyes of the world’s Indigenous peoples.

ILO Convention No 169 was adopted in 1989, following revision of the integrationist and no longer acceptable ILO Convention No 107. Neither ILO instrument has been ratified by Australia. At the time of the adoption of Convention No 169, Indigenous criticism of its shortcomings was widespread. However, it remains the only international treaty specifically concerned with Indigenous peoples’ rights, especially in relation to land and resources, and represents a concrete manifestation of the international community’s growing responsiveness to the demands and aspirations of Indigenous peoples.

Human rights

The post-1945 period has witnessed considerable developments in the codification of human rights law and the establishment of international supervisory procedures. Most of the principal human rights treaties contain general standards, many of which highlight the general discrimination experienced by Indigenous peoples, and some of which are directly relevant to the aspirations of Indigenous peoples in relation to their land and resources, identities etc. In recent years several of the international supervisory bodies, so-called ‘human rights treaty bodies’, have addressed the normative implications of general human rights standards for Indigenous peoples. This has led to the emergence of a distinct body of human rights jurisprudence on the rights of Indigenous peoples.

The most active treaty bodies have been the Human Rights Committee and the Committee on the Elimination of Racial Discrimination (CERD Committee), the bodies charged with supervision of the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

The main provision of the ICCPR of relevance is article 27, which provides that persons belonging to ethnic, religious or linguistic minorities must not be denied the right, in community with other members of the group, to enjoy their own culture, to profess and practice their own religion or to use their own language. The Human Rights Committee’s General Comment on article 27 affirms the relevance of the provision for Indigenous peoples:

‘[T]he Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specially in the case of Indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.’ [emphasis added]

In a series of ‘views’ adopted in relation to individual communications, the Committee has confirmed the relevance of article 27, as well as articles 17 (privacy) and 25 (family) to disputes concerning the control and development of Indigenous territories and resources.

On 18 August 1997 the CERD Committee adopted a far-ranging and ground-breaking General Recommendation concerning Indigenous Peoples calling upon States to take a series of measures, including:

‘4(c) to provide Indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;
(d) to ensure that members of Indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent [emphasis added]; and
(e) to ensure that Indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs, to preserve and practice their languages.’

Of particular significance is paragraph 5 in which:

‘The Committee especially calls upon States parties to recognise and protect the rights of Indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories.’

In 1998, pursuant to its urgent measures and early warning procedure, the CERD Committee asked the Australian government to explain how the recent amendments to the Native Title Act 1993 (Cth) were consistent with Australia’s obligations under the CERD. In its concluding observations, delivered on 18 March 1999, the Committee observed inter alia:

‘6. ... While the original 1993 Native Title Act was delicately balanced between the rights of Indigenous and non-Indigenous title holders, the amended Act appears to create legal certainty for governments and third parties at the expense of Indigenous title...
9. The lack of effective participation by Indigenous communities in the formulation of the amendments also raises concerns with respect to the State Party’s compliance with its obligations under Article 5(c) of the Convention...
11... [I]n conformity with the Committee’s General Recommendation XXIII concerning Indigenous Peoples, the Committee urges the State Party to suspend implementation of the 1998 amendments and re-open discussions with the representatives of the Aboriginal and Torres Strait Islander peoples with a view to finding solutions acceptable to the Indigenous peoples and which would comply with Australia’s obligations under the Convention...’[emphasis added]

Environment

In the codification and harmonisation of international environmental law over the past decades, Indigenous peoples have argued for recognition of their right to control their resources, including their biological resources. A number of more recent multilateral initiatives have acknowledged the role of Indigenous communities in environmental management and sustainable development, in particular in relation to the conservation of biological diversity. However, these developments have not been based upon recognition of the distinct rights of Indigenous peoples in relation to the environment.

In particular, the 1992 UN Conference on Environment and Development saw the adoption of the UN Convention on Biological Diversity (CBD). This treaty embodies the notion that traditional techniques and knowledge are essential to the conservation of bio-diversity and the ‘sustainable use of its components’ (Preamble). In accordance with article 8(j) Contracting Parties must ‘respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles’. Indigenous advocates have criticised the reference to ‘traditional lifestyles’, which excludes Indigenous peoples who have adapted to the situations in which they find themselves. Further, article 8(j) is placed under the heading ‘In Situ Conservation’, which reinforces the concept of protected areas, a concept which Indigenous people generally oppose because it has been used to deprive them of their land and resources.

In accordance with article 16, Contracting Parties shall ‘provide and/or facilitate access for and transfer to other contracting parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources’. Indigenous critics of this provision have commented that while many of these resources lie in Indigenous territories, gene hunters and bio-prospectors are granted access to them by national governments and not on the basis of Indigenous consent.

Trade & finance

In the area of trade, recent normative developments have facilitated the concentration of economic power and insulated the international trade regime from the concerns of environmentalists, labour movements, local communities and Indigenous peoples. In the context of the promotion of foreign direct investment and increasing deregulation of transnational corporations, developed States have exerted sustained pressure for the establishment of a regime of intellectual property rights to protect their own technological innovations and to gain access to the biological and other resources of the south. The recently concluded Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), in particular, will facilitate access by transnational corporations to new markets in developing countries and to the ownership of the genetic resources of local and Indigenous communities. Under the rules of the General Agreement on Tariffs and Trade (GATT) 1994, all member countries are required to ensure that their national intellectual property rights laws conform to the TRIPS Agreement. There is growing concern that the treaty, which embraces a model according to which the products of scientific research become the private property of the product’s corporate sponsors, will assist bio-piracy.

Within multilateral lending institutions such as the World Bank there has been growing awareness of the impact of development projects on the lives of Indigenous peoples. The World Bank’s 1991 Operational Directive on Indigenous Peoples (Operational Directive 4.20), for example, mandates the informed participation of Indigenous peoples in development planning and implementation. It provides that ‘development plans that draw upon Indigenous knowledge are often more successful than those introducing entirely new principles and institutions’. It does not, however, refer to the emerging discourse on international Indigenous rights nor confer any significant recognition upon Indigenous peoples as subjects in the development process.

Conclusion

The impacts of globalisation on the lives and rights of Indigenous peoples have been uneven. There has been a convergence of the perspectives of Indigenous peoples and the responses of the international community in the emergence of a discrete body of law concerned with Indigenous peoples’ rights, and in the development of an area of human rights jurisprudence concerning Indigenous peoples. In environmental law there have been steps towards recognition of the particular needs of Indigenous communities in relation to the environment and their territories and resources. It is in the area of trade that the international community has shown complete indifference to the effects of transnational corporations and foreign direct investment upon the world’s first peoples. In the years ahead the major challenges for international Indigenous advocates will lie in the realm of the GATT/World Trade Organisation and the multilateral financial institutions. The decisions made in these forums are likely to have a far greater impact on the worlds of Indigenous peoples than those made in the more benevolent bodies of human rights experts.

*Dr Sarah Pritchard is a Sydney barrister and senior lecturer in the Faculty of Law at the University of New South Wales.