Indigenous Law Bulletin
by Les Malezer
An international examination of the rights and freedoms of indigenous peoples has seen conflict resolution emerge as a high priority. Following a recent, robust dialogue in one of the United Nations working groups, an Indigenous International Commission for Conflict Resolution and Mediation has been launched and two international seminars are planned for the next two years.
This year’s United Nations Working Group on Indigenous Populations (‘WGIP’ or ‘Working Group’) thematic debate centred on the topic of conflict resolution. The first two days of the 22nd session of the WGIP, held in Geneva in July 2004, comprised more than 100 Indigenous groups and governments presenting oral and written statements on conflict resolution, addressing a wide range of issues from militarisation of Indigenous lands to historical treaties.
The working paper prepared by Working Group expert, Miguel Alfonso Martínez, drew attention to the many issues raised during previous sessions of the Working Group and other meetings. It noted that conflict was not restricted in definition to violent or armed clashes between inter- or intra-state parties, but extended to social tension which often precedes recourse to open violence and to arms. For indigenous peoples, the paper explains the history of colonisation, ‘nationalisation’ of indigenous ancestral lands and extensive privatisation of state-sector property which has set the stage for conflict over land, natural resources, autonomy and self-government.
The root cause of conflicts for indigenous peoples, mostly with states, is the differing views over who has ownership and control of the lands and the resources. Conflict can therefore be best avoided by recognising that, for indigenous peoples, lands territories and waters are spiritual and integral components of existence.
Mr Alfonso Martínez cites the second most important component of avoiding conflict as the recognition of the right of self-determination of indigenous peoples:
The right of self-determination assures political authority and legitimacy, as well as the enforcement power necessary to take effective, practical actions to fully materialise their rights to their lands, resources, cultural heritage and religious practices, and to secure and protect their indigenous institutions.
His recommendations stressed the importance of establishing negotiation processes that are based on the full, equal and free participation and consent of indigenous peoples.
The principle of free, prior and informed consent was also given special consideration by the Working Group under a separate agenda item, which heard argument that this principle was a component of self-determination and now a part of customary international law. (This latter claim is rejected by the World Bank which, while acknowledging the requirement for ‘free and informed consent’ contained in ILO Convention 169, considers free, prior and informed consent by Indigenous Peoples would impose a limitation on the sovereignty of States.)
In the discussions on conflict resolution a range of conflict issues were presented by the Indigenous delegations. The delegates highlighted the continuing effects of colonialism and assimilation processes, socio-economic inequalities, displacement to urban communities, the absence of government policies for promoting and protecting human rights, encroaching farming interests in indigenous territories and the effects of forced deportation or resettlement.
Human rights abuses included the killing, disappearance and rape of indigenous people in armed conflict situations, the militarisation of indigenous ancestral territories, forced recruitment of indigenous children and youth into armed groups and the sexual violence and exploitation affecting indigenous women and girls. Indigenous activists are being arrested under anti-terrorism legislation, under the pretext of national security concerns.
Globalisation also has many negative effects for indigenous peoples, such as privatisation of health and education services, traditional knowledge, and access to ‘genetic resources’. People spoke of the negative impacts of transnational corporations on indigenous peoples and the destruction caused by dams on indigenous communities, causing despoliation of environment, loss of sacred lands, and displacement of communities.
Many interesting proposals were made on ways to resolve conflict. Delegates raised the importance of the proposed Declaration on the Rights of Indigenous Peoples which is intended to be an instrument for resolving fundamental conflicts over territories and self-determination of peoples. Although states had referred to mechanisms available for domestic remedies to conflict, Indigenous delegates felt that these mechanisms did not have the framework, which would be provided by the proposed declaration, to resolve disputes between indigenous peoples and member states. They felt that the inability to gain justice and remedy at the national levels has led to widespread attempts at recourse via international remedies.
The proposed Declaration on the Rights of Indigenous Peoples would become an effective instrument if successfully completed, as it provides domestic institutions with a framework for identifying indigenous rights and freedoms, and it could be used in conjunction with implementation of the existing human rights treaties.
Particular attention was given to the historical treaties which were signed by states with indigenous peoples. None of these treaties were honoured by the state parties and have been contentious because of biased interpretations by states in order to uphold their interests whilst denying indigenous rights. However, many Indigenous delegates emphasised that treaties should not be categorised as sources of conflict, but should be recognised as mechanisms for conflict resolution. Mr Alfonso Martínez points out the problems arising out of a misrepresentation of the role of treaties as instruments of conflict resolution:
(A) large number of indigenous groups from North America, who are, allegedly, parties to treaties of “land surrender”, oppose the object of the treaties on the grounds that they had considered themselves rather to be parties to treaties of peace and friendship, and had never agreed to forfeit either their lands or their right to self-determination, something which would be in total contradiction to their condition as “keepers of the land” for future generations, a tenet of their cosmogony.
Article 36 of the Draft Declaration on the Rights of Indigenous Peoples focuses upon the right of indigenous peoples to the enforcement of treaties according to their original spirit and intent, and proposes that conflicts and disputes which cannot be settled by parties should be adjudicated by competent international bodies. The Working Group still considered that the most important development must be the building of new relationships between the non-indigenous populations and indigenous populations, based upon mutual recognition, harmony and cooperation, instead of continuing ignorance, confrontation and rejection. In this matter the right of self-determination and the principle of free, prior and informed consent are paramount.
There were calls for recognition to be given to indigenous approaches to conflict resolution. Indigenous participants supported the creation of an international mechanism with a mandate to act on an urgent basis in connection with conflict situations. It was suggested that the functioning of such a mechanism could be strengthened by the involvement of the Special Rapporteur and members of the Permanent Forum on the situation of the human rights and fundamental freedoms of indigenous peoples.
Tentebba Foundation, of the Philippines, announced that an Indigenous International Commission for Conflict Resolution and Mediation had indeed been established and was expected to visit the regions of Colombia by the end of 2004. The successful outcome of this first mission is eagerly awaited by Indigenous delegates.
In considering the many contributions made by Indigenous delegates and some states, the Working Group concluded that the international community must play a more active role in conflict prevention and resolution, pertaining to indigenous peoples. The Working Group proposed that a seminar be held in 2005 to give further examination to the topic of ‘Indigenous Peoples and Conflict Resolution’. The work of that seminar could be considered at the next session, as the Working Group also decided to keep this topic as a sub-item on its future agenda.
Mr Alfonso Martínez has been asked to develop his working paper in preparation for the next session. He has been asked to examine conflicts between indigenous traditional sources of authority and state-designated institutions, and to explore the possible role that might be played by domestic and international third parties in brokering agreements.
An additional seminar is recommended by the Working Group for 2006 to examine the implementation of treaties. This proposal has been given special endorsement by First Nations delegates who have offered to host this seminar in the territories of the ‘Treaty 6’ nations in Canada. The conduct of these two seminars will rely upon the resources and goodwill of the Office of the High Commissioner on Human Rights as the Working Group does not have a budget to implement these recommendations. Previous proposals have been well supported by that office and it is likely that both seminars will be successfully undertaken.
The Working Group has also made a request to the human rights treaty bodies to give special attention to conflicts involving indigenous peoples.
The discussion on conflict resolution, at this 22nd session of the WGIP, may represent a milestone in the examination of indigenous peoples’ rights at the United Nations. Until this year, the highest priority has been given to the development of the international standard, the Declaration on the Rights of Indigenous Peoples. Although the completion of this standard remains the highest priority, the attention of many participants in the international arena is turning to the continuing human rights abuses against indigenous peoples and questions are now being asked as to why the obvious developments have not occurred in ending the most blatant abuses.
The topic of conflict resolution highlights the clear intention of indigenous peoples to become involved in the prevention and resolution of conflict through international effort. States and multinational interests who have been negligent, ignorant or otherwise in flagrant violation of their responsibilities to promote and protect the human rights of indigenous peoples would be well served if they took heed of the calls for immediate action.
Les Malezer is Chairperson of the Foundation for Aboriginal & Islander Research Action (‘FAIRA’). Les is a member of the Butchulla peoples of the Gubbi Gubbi nation. He works at national and international levels for the recognition and promotion of Indigenous rights by governments, but hopes to spend more time in the future supporting Gubbi Gubbi land rights and language.
 Miguel Alfonso Martínez, Indigenous Peoples and Conflict Resolution: Report of the Working Group on Indigenous Peoples, UN Doc E/CN.4/Sub.2/AC.4/2004/2 (2004).
 Ibid, para 10.
 Convention Concerning Indigenous and Tribal Peoples in Independent Countries, International Labor Organisation Convention No 169, adopted 27 June 1989 (entered into force 5 September 1991).
 World Bank ‘Legal Note on Free, Prior and Informed Consultation’, 2 August 2004.
 Alfonso Martínez, above n1, para 40.