Simpson, Tony --- "ILO 107 -- A License to Rights" [1987] AboriginalLawB 7; (1987) 1(24) Aboriginal Law Bulletin 10

• Ilo 107 – A License To Rights

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ILO 107 – A License to Rights

by Tony Simpson

The Governing body of the International Labour Organisation (ILO) has decided to place the revision of ILO Convention 107, the indigenous rights standard adopted in 1957 and based on integrationist notions, on the agenda of the International Labour Conference in 1988 (possibly continuing to the meeting in 1989).

The decision of the Governing Body was based on a report to it by a committee of experts which met in Geneva In September 1986. There were two Australian 'experts' on that Committee: Robert Bluer, General Secretary of the Australian Teachers' Federation nominated by the ACTU and Bill Grey, from the Department of Aboriginal Affairs, nominated by the Australian Government. Robert Bluer was advised by Kevin Cook of Tranby College.

A delegation from the New South Wales Aboriginal Land Council Including William Bates. Delia Lowe and Norma Watford along' with Legal Adviser, Tony Simpson also attended as observers. NAILSS was represented by Paul Coe. These two indigenous organisations worked closely together.

The meeting was chaired by Rodolfo Stavhagen from Mexico with great skill and sensitivity. The experts had a working document which was prepared by the Secretariat of the ILO. The major theme of the working document was that indigenous groups should have the right to 'participate' in decisions affecting them. The meeting quickly and unanimously concluded that the integrationist language and approach of 107 was outdated and destructive.

The report of the meeting recognised that:

The first ideas offered were that there should be recognition of the basic principles of increased consultation of indigenous and tribal peoples and participation by them In decision-making. It was quickly agreed by most experts. however, that these ideas by themselves were too weak to take account of the real needs. Experts and observers from non-governmental organisations, especially those representing indigenous and tribal peoples supported by experts from workers' circles, point out that any such obligations could quickly be perverted - as they often had been - to mean[1], pro forma consultations in which no real account was taken of the views expressed and of the true needs of the people being affected. The weight of these views was endorsed by most of the participants in the meeting.

After extensive debate a group of experts and observers including Bill Grey. Robert Bluer and the delegation of Australian Aboriginal interests endorsed the following draft and submitted it to the meeting for consideration:

Replace the fourth preambular paragraph of Convention No. 107 with:
Considering that the International Covention on Economic, Social and Cultural Rights affirms the fundamental importance of the right to self-determination, as well as the right of all human beings to pursue their material. cultural and spiritual' development in conditions of freedom and dignity:
Recognising that these rights are fundamental to the survival and future development of indigenous and tribal peoples as distinctive and viable societies;

Replace Articles 2 and 5 with:
Article 2
In co-operation with indigenous and tribal peoples, government shall have the responsibility for developing co-ordinated and systematic action to ensure:
(a) that indigenous and tribal peoples are able to enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination;
(b) that indigenous and tribal peoples' territorial rights. economic rights and political, social. cultural and religious institutions are recognised and protected;
(c) that indigenous and tribal peoples be accorded the respect of determining for themselves the process of development as it affects their lives and institutions.

The above proposal received substantial general support at the meeting. The report recognised that 'all the experts felt that some statements and principles similar to those contained in the above draft should be the basic orientation of a new instrument on the rights of Indigenous and tribal peoples'.

ILO 107 not only deals with land. It also refers to a number of other issues such as health, education and employment. In relation to employment. the report recognised the need to establish vocational training institutes in various countries keeping in mind the needs and characteristics of the communities being affected and the local situations.

In respect to health issues, the meeting recognised the problems which arise from the 'top down' development approach. Reference to the inadequacies of 'top down' approaches was also made in relation to economic development. The meeting observed that when Convention 107 was adopted in 1957 the process could be described as a top down approach. That is, one which the National Government decided what was best for the inhabitants of the country, including the Indigenous and tribal populations, and imposed its own concepts without discussion or consultation. This also had been the attitude of international organisations working with government on development projects.

The meeting noted, however, that there had been a change in perceptions and that there was an increasingly general recognition that development has to involve persons affected at all levels of the decision making and implementation if it is to be valid.

It was emphasised by indigenous representatives and some worker and government representatives that involvement in the decisions was simply not good enough. The concepts of sell-determination and consent were the necessary premises on which to base an adequately revised convention.

Williams Bates. on behalf of the New South Wales delegation, told the meeting that 'the only real developments are those determined by indigenous people through our institutions'.

Further on, he told the meeting that the following extracts were a useful guide for the experts to consider 'firstly, indigenous nations and peoples are entitled to the permanent control and enjoyment of their aboriginal ancestral historical territories. This includes surface and sub-surface rights. inland and coastal waters renewable and non-renewable resources and the economics based on these resources[2].

Secondly. from the San Jose Declaration of 1981: 'these people have a natural and inalienable right to keep the territories they possess and claim their lands which have been taken from them. In other words. they are entitled to the natural and cultural patrimony contained in the territory and to determine freely how to use it and benefit from it'.

Bates also told the Committee that 'any attempt to typify our proposals for the recognition of communal intregrity and self-determined social and economic and cultural development as participation dismays us'.

He told the experts that 'where there has been an historic dispossession-illegal in our opinion-the restitution of these lands should occur. Where this is impossible. just compensation should be negotiated and paid to the people through their own institutions. Land is the basis of our physical, cultural, social and spiritual life. Without it we will not survive. A recognition of the fundamental importance of this relationship needs to be unequivocally enshrined in the revised Convention'.

Delia Lowe told the meeting that 'integration is unacceptable because it implies and endorses ethnocidal practices'.

No matter what the language, if a revised Convention is not based on sound principles, the revised convention will remain obsolete and destructive.

The minimum basis for the effective recognition of indigenous rights lies in consent. It is not enough for the dominant society to consult. It is not enough to 'allow or even require participation-as there is a total inequality of bargaining power. The revised Convention must address and incorporate, in whatever language, the idea of consent'.

Lowe emphasised that 'If this Committee does not recognise this, if this Committee does not revise the convention so that the principles are effectively expressed then a revised convention will be worse than obsolete: it will be hypocritical and destructive'.

The strong presence of determined indigenous groups prevented the meeting from adopting a totally unacceptable basis for the revision of 107.

Although formally speaking, the ILO is triparthied: that is labour, employers and government, the Secretariat has an enormously powerful role.

The Secretariat's working papers were slanted towards 'participation', as the basis for a revised convention; the original draft recommendations and conclusions which reflected the secretariat's preliminary views. were not considered to bean adequate reflection of the discussion that had taken place.

Indigenous participants and their advisers repeatedly, indicated that a revision based on inadequate principles would be a backward step and that they would do everything in their power to prevent this. The original recommendations and conclusions which reflected the inadequate notions of participation were accordingly rejected.

At the eleventh hour a revised set of conclusions and recommendations were introduced. After discussion and amendment. the indigenous representatives, in consultation with the supporting Trade Unionists (esp, the Canadian and Australian) and the supportive Governments (esp. Norway and Australia) considered that the final recommendations and conclusions could form a useful[3] minimum basis to revise the contention.

The conclusions and recommendations are as follows:

Conclusions
1. The Convention's integrationist approach is inadequate and no longer reflects current thinking.

2. Indigenous and tribal peoples should enjoy as much control as possible over their own economic. social and cultural development.

3. The right of these peoples to interact with the national society on an equal fooling through their own institutions should be recognised.

4. The Meeting concluded that the traditional land rights at these peoples should be recognised and effectively protected and noted that the indigenous and tribal representatives present unanimously considered that these lands should be inalienable.

5. The Meeting agreed that, in order to make these rights effective ratifying States should lake measures to determine the lands where this has not already been done.

6. The authority of States to appropriate indigenous or tribal lands, or to remove these peoples from their lands, should be limited to exceptional circumstances and should lake place only with their informed consent. If this coastal cannot be obtained, such authority should be exercised only after appropriate procedures designed to meet the exceptional circumstances for such taking and which guarantee to these peoples the opportunity to be effectively represented.

7. In cases where the appropriation or removals referred loin the previous paragraph proves necessary after these procedures, these groups should receive compensalion including lands of al least equal extent, qualify and legal status which allow the continuation of their traditional lifestyles and which are suitable to provide for their present needs and future development.

8. In all activities proposed to be taken by the ILO or by ratifying States affecting indigenous and tribal peoples these peoples should be integrally involved at every level of the process.

9. The Meeting noted that the indigenous and tribal representatives present unanimously stressed the importance of self-determination in economic, social and cultural affairs as a right and as a bask principle for the development of new standards within the ILO.

Recommendations
The Meeting of Experts recommends to the Governing Body;

(a) that it place the revision of flits instrument on the agenda of the International Labour Conference in 1988 or as early as possible thereafter;

(b) that full account should be taken of the views expressed at this Meeting in revising the Convention;

(c) that the scope of the revision should be limited to social, economic and cultural considerations;

(d) that it take all possible measures to ensure that participation of indigenous and tribal representatives in the process leading to the revision of this Convention and in other ILO activities in this field;

(e) that the ILO should adopt a programme of activities for the protection of the rights and interests of indigenous and tribal peoples, taking account of the above-mentioned conclusions.

A number of astute scholars and advisers to North American indigenous groups, along with the writer believe that the revision of ILO 107 is a perilous pursuit. Some are pessimistic in relation to the adequacy of a revised Convention. In short, their fears stem from the conservatism of the secretariat and the conservative elements within the ILO. If a revised ILO 107 falls short of the developments within the United Nations and current progressive thinking then it may form an impediment to the eventual recognition of adequate international standards applicable to Indigenous People.

If the revised convention merely consists of cosmetic changes, the convention could be used to justify States' practices which are detrimental to Indigenous Peoples' interests. Indigenous organisations will be encouraged over the next 18 months to make strident representations to the I LO so as to maximise the possible outcome of the revision process. They will also be encouraged to make representations to their governments, trade union and employer bodies to ensure that an effective revision takes place.

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[1] Bluer was particularly effective in his identification of the pitfalls in this respect.

[2] from the joint statement of principles submitted to the 1985 session of the UN by indigenous NGOs.

[3] Indigenous Representatives have continually stated that to adequately recognise Indigenous claims the notion of self-determination must be incorporated. If the revised convention falls short then Indigenous Peoples world wide will resist the draft.