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eLaw Journal: Murdoch University Electronic Journal of Law |
| Author: | Fernand de Varennes LLB, LLM (LSE), Dr Jur Senior Lecturer, Murdoch University School of Law |
| Issue: | Volume 2, Number 1 (April 1995) |
[This article is an extract from a much larger work soon to appear in 1995 with Martinus Nijhoff Publishers, in the Netherlands, titled "Language, Minorities and Human Rights". The author wishes to thank Lise Lorrain, of Moncton, Canada, Elizabeth Handsley of Murdoch University, Perth, Australia, Professor Rosalyn Higgins of the London School of Economics, London, England, and Dr Bruno de Witte of the Rijskuniversiteit-Limburg, Maastricht, Netherlands, for their kind counsel and assistance.]
Language is a gift from the Creator. Embodied in aboriginal language is our unique relationship to the Creator, our attitudes, beliefs, values, and the fundamental notion of what is truth.[1]
1.0 PRELIMINARY REMARKS
As with other individuals, members of indigenous peoples[2] may claim that they
are treated in a disadvantageous manner if public
authorities and the resources
of the state are not responsive to their demands for equal treatment and
non-discrimination in respect
to language. Whether or not the state's
behaviour should be deemed discriminatory will depend upon factors such as
demographic considerations,
whether the indigenous language exists in
written form, the financial resources of the government, the type and
level of services
demanded in the indigenous language, etc.
Equality and non-discrimination are not the only norms which can assist indigenous
peoples in language matters. Obviously, if an
indigenous people is
numerically less than 50 percent of a state's total population, it objectively
is a numerical minority and is
thus entitled to the rights guaranteed to
minorities under Article 27 of the International Covenant on Civil and
Political Rights,[3]
including the right to establish and operate its own
schools, using its language as medium of instruction, free from government
intervention,
or assistance. This has been confirmed in cases which have
gone before the United Nations Human Rights Committee, such as Lovelace
v.
Canada,[4] Ominayak v. Canada,[5] and Kitok v. Sweden.[6] It has also been
confirmed by the Inter-American Commission on Human
Rights in the Miskito
case.[7] The Commission considered the Miskitos of Nicaragua as a minority
community, despite its best efforts
to avoid using the term
"minority".[8] Finally, if the freedom of expression of any
indigenous person were restricted,
this would also constitute a violation
of widely accepted human rights standards.
Moreover, it appears increasingly evident that indigenous peoples are entitled
to preferential treatment in linguistic affairs, relative
to that afforded
to other individuals. This is due not to their position as a minority,
which they may not necessarily constitute
in some states, but to the
acknowledgement in international law, as well as in some national jurisdictions,
that they occupy a unique
political and legal niche, with corresponding
"privileges" not necessarily available to others.
2.0 HISTORICAL OVERVIEW
2.1 The Languages of Indigenous Peoples in International Law
The recognition that indigenous peoples ought to be treated differently is not
a new phenomenon at the international level. At the
close of the nineteenth
century there were already international conferences dealing with Africa
and its native tribes (in Berlin
in 1884-85 and in Brussels 1889-90). The
Covenant of the League of Nations[9] contained a provision which in
essence recognisedthat
states had a fiduciary-type responsibility to
assist "peoples not yet able to stand by themselves under the strenuous conditions
of the modern world": therein "well-being and development" was seen
as a "sacred trust of civilisation".
States were also obliged to "undertake
to secure just treatment of the native inhabitants of territories under
their control".[10]
However, prior to and immediately following the Second World War, most international
instruments remained silent on the issue of
any special status or rights
pertaining to indigenous peoples. The only real exceptions were the
instruments of the International
Labour Organisation (ILO), which began
its work on the treatment of indigenous peoples in the 1920s. Beginning in
1926 with a committee
of experts on native labour, the ILO then
constituted a series of treaties involving some issues relevant to indigenous
peoples,
including Convention No. 29 (1930) on Forced Labour; Convention
No. 50 (1936) on Recruitment of Indigenous Workers; Convention No.
64
(1939) on Contracts of Employment (Indigenous Workers), and Convention No.
65 (1939) on Penal Sanctions (Indigenous Works).[11]
It was not until some years after the Second World War that international interest
in the rights of indigenous peoples increased
dramatically, culminating in
a study in 1953 which would ultimately pave the way for the first
comprehensive international treaty
to recognise the need for some special
consideration in respect to indigenous languages.
The languages used by members of indigenous peoples appeared as a legal concern
for the first time in 1957 in the ILO Convention
(No. 107) Concerning the
Protection and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries.[12]
The prevailing tone of the
treaty is clearly assimilationist, as it deals mostly with methods by
which to permit the use of indigenous
languages as a temporary measure
prior to the adoption by indigenous peoples of "modern" languages and
the cultures of
dominant Western-based populations. For example, Article
23 of the Convention provides that a state's educational programmes should
be adapted to the stage that the indigenous populations have reached in
their social, economic and cultural integration into the
national
community.
As one author has pointed out:
"The degree of logical coherence between a commitment to preserve a language,
and one to secure its gradual elimination from
use is not great. The
commitment to preserve is, to be sure, only to preserve as far as possible
so that the balance is tipped in
favour of elimination."[13]
Even if it is recognised in the Convention that indigenous children should
be taught to read and write in their mother tongue or
in the main vernacular
language of the community, it is only a temporary measure until the transition
fro the mother tongue to the
national or official languages of the country
takes place in a "progressive" way. Some thirty years later, the
Convention
appears to be out of date and far removed from the prevailing
views of indigenous peoples and perhaps most governments.
At the United Nations, two more recent initiatives demonstrate a growing awareness
of and interest in the special needs and position
of indigenous peoples.
In 1971, the UN Sub-Commission on the Prevention of Discrimination and the
Protection of Minorities appointed
Mexican Ambassador Jose R. Martinez
Cobo to undertake a study on the problem of discrimination against
indigenous populations. As
shall be seen below, the influential report of
the Special Rapporteur contains an indepth analysis of many issues beyond
that of
discrimination. Moreover, a Working Group of the UN
Sub-Commission, on indigenous populations, was formed in May 1982 to
review developments
relating to indigenous peoples and to submit conclusions
and recommendations as to appropriate measures to promote respect for
their
human rights and fundamental freedoms. The Working Group's efforts
led to a draft Declaration on the Rights of Indigenous Peoples
which was
adopted by the General Assembly in 1992 and subsequently modified.[14]
Following the United Nations initiatives, and in reaction to increasing criticism
directed towards the 1957 ILO Convention, the International
Labour
Organisation convened in 1986 a meeting of experts, which eventually led
to the adoption in 1989 of the ILO Convention (No.
169) Concerning
Indigenous and Tribal Peoples in Independent Countries (the "1989 ILO
Convention").[15]
The trend towards guaranteeing state support for greater use of indigenous languages
becomes apparent in that instrument. Gone is
the urgency to integrate
completely indigenous peoples at the expense of their own language and
culture. The word "integration"
is eliminated from the preamble
and replaced with an expressed need to adopt "new international standards...with
a view to removing
integrationist orientation of the earlier
standards". The preamble goes on to recognise the aspirations of indigenous
peoples
to exercise control over their own institutions, ways of life and
economic development, which includes the maintenance and development
of
their identities, languages and religions.
The 1989 ILO Convention then goes on to identify how states must respect the
language rights of indigenous peoples. Generally, Article
2 provides that
governments have the responsibility to develop (with the participation of
the peoples concerned) action to protect
their rights, and stresses the
need for respect for their social and cultural identity, their customs and
traditions and their institutions,
including obviously their linguistic
component.
Perhaps the most revealing provision is Article 28, which provides that:
1. Children belonging to the peoples concerned shall, wherever practicable,
be taught to read and write in their own indigenous language
or in the
language most commonly used by the group to which they belong. When this
is not practicable, the competent authorities
shall undertake consultations
with these peoples with a view to the adoption of measures to achieve this
objective.
2. Adequate measures shall be taken to ensure that these peoples have the opportunity
to attain fluency in the national language
or in one of the official
languages of the country.
3. Measures shall be taken to preserve and promote the development and practice
of the indigenous languages of the peoples concerned.
>From complete integration to practical accommodation in language matters, the
trend at the international level is quite clear.
Although indigenous peoples
are still required to learn the official language of the state in which
they live, they are no longer
to be forced into abandoning their own language
and culture. On the contrary, states would now appear to have the obligation
to provide
resources so that indigenous children can learn their ancestral
language whenever it is practical. In fact, if the most recent
international
document on indigenous peoples (the UN Declaration on the
Rights of Indigenous Peoples) is any indication, the obligations of states
towards such peoples may be even greater than those towards any other
group of individuals, even extending to a government responsibility
to
support and provide resources for the revitalisation of indigenous languages.
2.2 The Languages of
Indigenous Peoples and
State Practices
Throughout history, reactions and attitudes of various colonisers and governments
towards the presence of indigenous peoples varied
with time as did the relative
strength and political power of such peoples. In some cases, the use of
indigenous languages was approved
of and even encouraged in order to
ensure the conversion of non-Christian communities. In other cases, it was
easier for missionaries
to learn widespread indigenous languages in order
to attain the objective sought. Indigenous languages in Latin America thus
moved
from an initial position of favour, in order to facilitate
conversion efforts and the administration of territories, to an increasingly
repressive situation which came about as the position of indigenous
peoples weakened:
"After the 1812 War with the United States, British colonisers no longer required
aboriginal peoples as allies or for that matter,
as explorers or traders.
Their value rapidly diminished, with the result that aboriginal tribes
became stigmatised as obstacles to
the progressive settlement of Canadian
society. Moreover, by refusing to relinquish their identity and assimilate
into "higher
levels" of "civilisation", aboriginal peoples
were dismissed as an inferior and unequal species whose rights could
be trampled
on with impunity... A policy of assimilation evolved as part of this
project to subdue and subordinate aboriginal peoples.
From the early nineteenth
century on, elimination of the "Indian problem" was one of the colony's
later the Dominion's
foremost concerns. Authorities rejected extermination
as a solution, but focused instead on a planned process of cultural change
known as assimilation. Through assimilation, the dominant sector sought to
undermine the cultural distinctiveness of aboriginal tribal
society; to
subject the indigenes to the rules, values and sanctions of Euro-Canadian
society; and to absorb the de-cultured minority
into the mainstream
through a process of "anglo-conformity". The means to achieve
this outward compliance with Euro-Canadian
society lay in the hands of
missionaries, teachers, and law-makers."[16]
In the US, teachers speaking only English were employed and instructed to assimilate
indigenous children into the majority-controlled
society. These children
were punished they were beaten or they had their mouths washed out with
soap if they lapsed into their native
language: "at the boarding schools
many of them were forced to attend by a government which at times withheld
food from parents
who wanted to keep their children at home."[17]
Similar methods were widely used in countries all over the world in an effort
to mould individuals belonging to non-dominant groups,
specifically minorities
and indigenous peoples. This occured particularly after the seventeenth
century as states intervened more
and more directly into what had
previously been community oriented activities (including education) in order
to create the trappings
of a nation-state:
"In 1812 the government junta advised schoolteachers that Spanish was the language
of the classroom and to banish Guaran from
school usage. "In school
the use of Guaran in class hours was prohibited. To enforce this rule,
teachers distributed to monitors
bronze rings which were given to anyone
found conversing in Guaran... [On] Saturday, return of the rings was
requested and each one
caught with a ring was punished with four or five
lashes".[18]
The Sami people in Scandinavia were submitted to many of the same techniques.
For example, from the second part of the nineteenth
century, Norwegian
authorities carried out a policy of assimilation in education as part ofthe
Norwegian nation-building process
in which the idea of "one nation -
one language" played a prominent role. This was followed by other measures
involving
language preferences, which were to have a highly destructive
impact on Sami society: "In
1902, a law was passed to
the effect that state-owned land in Finnmark could
be sold or hired only to Norwegian citizens who were able to speak, read
and write
the Norwegian language and who used this language in everyday
life. This regulation was primarily directed against Finnish immigrants,
but its impact on the Sami population was at least as severe."[19]
Before European settlement of Australia, there were approximately 250 Aboriginal
and Torres Strait Islander languages in the continent.
Approximately one
third of these continue to be spoken by some people, however, many
arespoken only by a handful of older individuals.
Their disappearance has
nothing society, but much to do with repressive, even genocidal, actions
by public authorities or members
of the dominant majority:
"Every turn in policy of government and the practice of the non- [Aboriginal
and Torres Strait Islander] community was postulated
on the inferiority of
the Aboriginal people; the original expropriation of their land was based
on the idea that the land was not
occupied and the people uncivilised; the
protection policy was based on the view that Aboriginal people could not
achieve a place
in the non- [Aboriginal and Torres Strait Islander] society
and that they must be protected against themselves while the race died
out; the assimilationist policy assumed that their culture and way of life
is without value and that we confer a favour on them by
assimilating them
into our ways; even to the point of taking their children and removing
them from family."[20]
Such a scenario, recurrently experienced by indigenous peoples worldwide, must
be understood in terms of economic and political power
in addition to legal
manifestations of such power: the invading population group would take
control of the land from indigenous peoples
in order to exploit local resources
and to establish effective political power over the territory. With
consolidation of power and
control over recently acquired territories, the
conquering authorities found it expedient at times to impose their way of
life upon
indigenous populations, whose traditions they often considered
primitive, in order to support the legitimacy of their own claims
of
ownership and dominion.[21]
Thus, many of the policies affecting indigenous peoples were based upon the
assumption that indigenous populations, cultures and
languages would eventually
disappear naturally or by absorption into other segments of the population
and the emerging national culture
of the new state:
"It was expected that the indigenous languages would disappear...in the face
of the dynamism, the equality and the attraction
of the official languages
- international languages which were assumed to have real or imaginary
advantages of all kinds, and were
considered particularly suited to
science, technology, art and civilisation. For that reason, no stress was
laid on state plans to
teach the indigenous languages or use them as languages
of instruction for some of the initial phases of education. That was
assumed
to be contrary to the best interests of those societies and involved
danger for national unity, since it was feared that it would
lead inevitably
to linguistic insularity and excessive social and political fragmentation.[22]
By the beginning of the second half of this century, however, national attitudes
had begun to undergo a marked shift contemporaneously
to changing
international attitudes and standards on the issue of the appropriate
legal and institutional response to the presence
of indigenous peoples and
their languages. Mexico was the scene of serious discussions during the
1950s suggesting that it was inappropriate
to teach in Spanish in an
environment where the mother tongue was an indigenous language. By the
middle 1960s, the principle of early
literacy in the native language plus
the teaching of Spanish as a second language became the official policy of
the Mexican government.
In the 1970s, a growing demand appeared for the
whole educational programme in the larger indigenous communities to be
truly bilingual
and bicultural:
"This means that, for the first time in the educational history of Mexico, the
Indian languages and cultures are being given
due recognition in school
programmes. It is hoped that all subjects during the whole of the primary
school cycle will be taught in
the mother tongue, in those areas where
this is spoken by a local majority; that Spanish will be introduced from
the beginning as
a second language and that the Indian students will become
fully bilingual; that in all relevant subjects the local culture will
be
prominently dealt with (for example, local and regional history, geography,
customs, traditions, ethnobiology, etc.). At the same
time, at the
national level, the curriculum should be organised in such a fashion that
schoolchildren all over the country will become
aware of the pluricultural
makeup of their nation, and respect for and knowledge of the minority
cultures should become a part of
the national curriculum. Of course, the
full hispanicization of all minority ethnic groups is still the stated
objective, but no
longer to the exclusion of the minority cultures as
such."[23]
Indigenous peoples seem to have been making impressive gains in many countries,
especially in public education. In Norway, Sami was
again allowed as a
language of instruction in primary schools in 1959. In 1969, Norwegian
legislation formalised the right of children
of Sami-speaking parents in
Sami districts to be instructed in the language of the indigenous
community. Finally, by 1990, the Norwegian
Primary School Act read as
follows:
1. Children in Sami districts have the right to be taught Sami and to be instructed
through the medium of Sami. From the seventh
year on the pupils themselves
decide on this matter. Children taught
in or through the medium of Sami are exempted from instruction
in one of
the two Norwegian language varieties in the eighth and ninth year.
2. On advice from the local school board the municipality board may decide that
Sami-speaking children shall be instructed in Sami
all nine years and that
Norwegian-speaking children shall learn Sami as a subject.
3. Instruction in or through the medium of Sami may also be given to children
with a Sami background outside the Sami districts.If
there are at least
three Sami-speaking pupils at a school, they may demand instruction in
Sami.[24]
In the 1980s, all three Scandinavian countries had begun to elaborate legal
guarantees in respect to the right to use the Sami language.
Norway, with
the largest population of Sami, adopted the first Sami language law in
1990, followed by Finland in 1991 with its Law
on the Use of the Sami Language
Before the Authorities. Sweden's attitude has been much more reserved than
its neighbours on this
issue, although it does have in place a few
regulations on the use of Sami. All three states have directly elected
Sami "Parliaments"
which came into being in Finland in 1973, in Norway
in 1987, and in Sweden in 1993. Although these are strictly consultative
bodies,
the fact that they are elected does give them considerable weight
with the legislators when faced with issues of importance to the
Sami.
In the last twenty-five years, Latin American countries have also begun to move
in a similar direction as regards the right to use
indigenous languages.
In March 1975, Peru enacted Decree No. 21 recognising Quechua as an
official language of the Republic because,
as set out in the Preamble,
large sections of the indigenous population "have no direct access to
knowledge of the laws".
The decree also provides that where the parties
only speak Quechua, legal proceedings shall be conducted in that language,
and that
the Ministry of Education shall provide "all necessary support
for institutions engaged in...the teaching and promotion of the
language
in question". The teaching of Quechua is declared to be compulsory at
"all levels of education in the Republic".
In Bolivia, the Supreme
Decree No. 23036 of 28 January 1992 contains provision for the implementation
of the Programa de Educacin
Intercultural Bilingue in the Guaran, Aymara
and Quecha communities.[25] In Mexico, the Executive Decree of 27 January
1992 amends
Article 4 of the Constitution by including a provision which
protects the development of indigenous languages, culture, uses, customs,
resources and social organisations.
In Paraguay, Law 28 of 10 September
1992 renders mandatory the teaching of both national languages (Spanish
and Guaran) at the elementary,
secondary and university levels.[26] Even
France, in its overseas territory of New Caledonia, has acknowledged the
need to respond
to the special legal and political situation of indigenous
peoples, as well as the need to adopt linguistic policies.[27] There are
many more examples of this evolution in national legislation.[28]
A notable change of heart is also observable in the United States which, until
perhaps some twenty years ago, had been intransigent
towards indigenous
peoples, their languages and their cultures:
"In 1978 the state legislature of Hawaii recognised Hawaiian as an official
language; subsequently a language revitalisation
program was established.
Ten years later... a Hawaiian senator introduced a proposal in both houses
of Congress which resulted in
the adoption of the Native American
Languages Act in October 1990. In October 1992, additional legislation was
passed, setting up
a grant program "to ensure the survival and
continuing vitality of Native American languages"... The Native American
Languages
Act acknowledges that the "United States has the responsibility
to act together with Native Americans to ensure the survival
of these
unique cultures and languages", and establishes a federal policy
"to preserve, protect and promote the rights
and freedom of Native
Americans to use, practice and develop Native American languages" and
to "encourage and support the
use of Native American languages as a medium
of instruction". The grant system supports community projects, teacher
training,
materials development, training for radio and television production,
language documentation and equipment purchase."[29]
Although progress has also been made in Canada, most indigenous peoples do not
actually have the right to demand the use of their
language medium of instruction
in that country. The governments in the Province of Quebec and the
Northwest Territories (where a
large percentage of the population is indigenous)
have the most generous attitudes and legislation in place, but most
governments
in Canada generally do not allow the use of indigenous languages
in state-supported schools as medium of instruction, nor even allow
the
instruction of indigenous languages except perhaps for one or two hours
every week, despite important sums of money being allocated
to indigenous
peoples by governments for education.[30] In other areas, the government
of Canada has been more generous, as for example
the funding of indigenous
language broadcasting.[31]
Finally in New Zealand, numerous court decisions have confirmed that the Maori
language is protected under the Waitangi Treaty as
a te reo Maori, a
valued Maori treasure.[32] Thus, partly in recognition of New Zealand's
treaty obligations, te reo Maori was made
an official language in 1987 and
legislation was adopted in order to fulfil the following obligations in respect
to the language
of the indigenous Maori:
1. Law and policies preventing the use of te reo Maori in the courts are inconsistent
with the principles of the treaty.
2. The education and broadcasting systems overemphasise English and thus fail
to give adequate protection to te reo Maori.
3. Te reo Maori should be recognised in the courts and in dealing with any
department or local authority.[33]
Whilst there is undoubtedly a visible trend towards the recognition of the fundamental
importance of language for indigenous peoples
in many countries, not all
states share the view that there is a need to accommodate the language
preferences of indigenous peoples.
Apparently, governments in Malaysia, India, Burma, and Bangladesh have at times
claimed that everyone is indigenous. Moreover, a
number of Asian governments
have cited the need for a national language to promote national unity, and
some have launched assimilation
programmes reminiscent of the techniques
used by European colonialists in America and Australia: children are
removed from their
families and sent to government boarding schools where
instruction is in the official or majority language.[34] There may be even
more sinister explanations for such practices:
"But behind such legitimate concerns often lurks a poorly disguised contempt
for cultures seen as backward. The Commission for
a New Asia, which is a
group of leading intellectuals from the region, recently expressed a commonly
held official view: "In
no Asian society should we be prepared to
perpetuate the existence of groups which will be fascinating human
anachronisms worthy
only for the study of 21st century anthropologists"."[35]
In 1993, many indigenous inhabitants of Easter Island openly challenged the
Chilean government, demanding control over their land
and the use of their
native language, Rapa Nui, as the main language in their schools. Even
states with a longer established tradition
of accommodation towards indigenous
peoples have encountered problems in implementation. Public school
teachers are often unwilling
or unprepared to present indigenous languages
in a serious context within the classroom. Indigenous language materials,
if they are
available, are often translations of Spanish originals with no
reference to the indigenous cultures. In a number of states, the good
will
of public authorities is sometimes confronted with extreme scarcity of
resources or cuts in public expenditures such as public
education.
Even the armed uprising of indigenous peoples, including members of the Tzeltal,
Tzotzil, Tojolabal and Chol, in Chiapas, Mexico,
in January 1994 rested to
some degree on the inability of the Mexican government to carry through
with its constitutional and legal
obligations in respect to the use of
indigenous languages. Many public teachers in indigenous communities are
unable to speak the
local language, and school material and books are
often only available in Spanish, in apparent violation of the
constitution. During
negotiations with the rebels, the government agreed
to provide education in their native language and to revise school curriculums
to include more indigenous history and culture.[36]
Despite these problems, there is no denying that national practices appear to
lean towards granting indigenous peoples more generous
concessions in language
and culture than they would perhaps be entitled to if they were considered
as simply another minority.
3.0 INDIGENOUS LANGUAGES AND HUMAN RIGHTS TODAY
3.1 Evolving International Standards
"The Yaki language is a gift from Itom Achai, the creator of our people, and
it should, as a result, be treated with respect.
Our former language is the foundation of our cultural and
spiritual heritage, without which we could not exist in the manner
envisaged
by our creator. Education is
the transmission of culture and values; therefore, we decalre that Yaki education
shall be the means
of transmission of language and of spiritual and
cultural heritage. We declare further
that every aspect of teaching should reflect
the beauty of our Yaki
language, our culture and our values.
It shall be the policy of the Pascua Yaki tribe that no member of the
tribe should be constrained by any external authority to deny nor debase
the Yaki language...The Yaki language is the official language
of the
Pascua Yaki nation and may be used in governmental administration (be it
an exercise of legislative, executive or judicial
power) but out of respect
for those who speak Spanish or English, Spanish and English may be used in
the official affairs of government."[37]
Indigenous peoples are recognised as having in international law a position
which differs from other groups.[38] In addition to the
rights to which
they may be entitled as minorities, and in addition to the right to non-discrimination
or freedom of expression,
indigenous peoples appear to be entitled to
other measures because of their unique political and legal status.
It is certainly a truism to say that the main driving force behind early international
instruments was the desire to assimilate indigenous
peoples into the
mainstream of society as quickly as possible, and at any cost. The trend
today is markedly different: indigenous
peoples, whilst still being called
to participate in the larger society by learning a state's official or
majority language, should
be allowed to, and even assisted in, preserving
their languages, customs, and culture. These new and evolving norms imply
that a
state is obligated to provide financial and institutional
assistance in order to develop and promote indigenous languages. These
norms would also seem to indicate that even in the case of a language used
by a relatively small number of indigenous people, a state
may be
obligated to assist in its maintenance financially or otherwise, if the
indigenous people seek to enforce their right to the
promotion and
safeguard of their language.[39]
The fundamental difference between the international documents and norms relating
to non-discrimination in general and those dealing
with indigenous peoples
in particular appears to be the following:
whereas a state has a positive obligation to provide for certain
services such as state education in a minority or non-official language
only when there is a sufficiently high number of speakers
of such
language, indigenous peoples would not seem to be subject to the same requirement
in respect to relative numbers.
Special Rapporteur Jose R. Martinez Cobo noted that in addition to the level
of legal recognition for the use of an indigenous language
appropriate to
the number of speakers of the language, consistent with the application of
non-discrimination on the ground of language,
"in no circumstances
should it be less than that of an auxiliary language in public education
and other specific functions that
may be established."[40] In other
words, regardless of its demographic importance, an indigenous language
should always be entitled
to some type of legal status.
In the area of public education, the Special Rapporteur pointed out that as
a strict minimum, indigenous children should always be
taught the language
of their people, regardless of their numbers:
"The state must make an effort to provide, at the primary level sufficient facilities
for the teaching of the mother tongue
of indigenous children; in all
circumstances it must teach them to read and write in their mother tongue
and consolidate this knowledge
before teaching them any other dialect or
language as a second or acquired language."[41]
The 1989 ILO Convention and the UN Declaration on the Rights of Indigenous
Peoples incorporate, to a significant extent, the suggestions
of the
Special Rapporteur in this respect.
Even in its Preamble, the 1989 ILO Convention refers to the appropriateness
of removing the assimilationist character of earlier
standards. Articles 2
and 6 provide for the duty of a state to cooperate with indigenous peoples
in the full realisation of their
social, economic and cultural rights,
with respect to their social and cultural identity, their customs and
traditions and their
institutions. In addition to the need for
cooperation, the 1989 ILO Convention calls for the duty 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" as well as to "establish means for the full
development
of these peoples' own institutions and initiatives, and in
appropriate cases provide the resources necessary for this purpose."
Indigenous
peoples have the right to retain their own customs and institutions, as
long as they are compatible with fundamental human
rights.
The Convention as a whole reflects an emphasis on indigenous peoples as political
or cultural units which are entitled to the respect
of the state, as well
as the maintenance of, and even appropriate resources for, their
institutions. Article 6 which refers to "representative
institutions"
appears to acknowledge that the political structures of indigenous peoples
are to be recognised and consulted
as part of a state's own legal and
political order.[42]
On the linguistic front, Article 27 of the 1989 ILO Convention begins with
the principle that educational policies must reflect the
special needs and
incorporate the histories, knowledge, value systems and the further
social, economic and cultural aspirations of
indigenous peoples. Moreover,
Article 27(3) provides that:
"In addition, governments shall recognise the right of these peoples to establish
their own educational institutions and facilities,
provided that such
institutions meet minimum standards established by the competent authority
in consultation with these peoples.
Appropriate resources shall be
provided for this purpose."
Whilst Article 27 of the International Covenant on Civil and Political Rights
and Article 27(3) of the 1989 ILO Convention are essentially
identical in
recognising the right to establish private educational institutions, they
differ in one important aspect: in the latter,
indigenous peoples are
entitled to appropriate resources from the state to make this possible,
something that the Covenant does not
provide for.
The 1989 ILO Convention also has a provision dealing with public schools and
indigenous peoples. Article 28(1) provides that indigenous
children "shall,
wherever practicable, be taught to read and write in their own indigenous
language or in the language most
commonly used by the group to which they
belong. When this is not practicable, the competent authorities shall
undertake consultations
with these peoples with a view to the adoption of
measures to achieve this objective."
Whilst some of the provisions of the 1989 ILO Convention are likely inspired
by the prohibition of discriminatory practices, it is
undeniable that
others go beyond this norm: indigenous peoples deserve "special measures"
because of their unique political
position within a state, or perhaps
because of their traditional political autonomy. Though there may be other
explanations why indigenous
peoples should be treated differently from
other groups, it remains fairly clear that regardless of their relative
demographic importance,
states should, whenever practical, protect and
promote the development and use of indigenous languages and assist
indigenous children
in learning the language of their ancestors. The
language rights of indigenous peoples are thus linked to their unique status
as
members of a political and social entity increasingly recognised in
international law.
Notwithstanding the above, the 1989 ILO Convention does raise some difficult
issues. For example, whilst a state should provide public
schooling where
indigenous languages are taught wherever this is practical, it is not
obvious what is meant by the use of the term
"practical". A
reasonable interpretation would be that even if the number of individuals
seeking public education in an
indigenous language is relatively small,
this ought not to be a complete barrier: a state should at minimum respect
these individuals'
right to learn the language of their people wherever it
is practical to do so. Of course, there are factors which may make it
impossible,
such as if a language only exists in verbal form. One could
also conclude that financial considerations may be involved, particularly
if the number of individuals is so small that it would clearly be
outlandish to spend large sums of money to produce teaching material
in a
language used, for example, by a few dozen individuals in a state where
resources for education are already hard-pressed. In
a situation where it
is not practical for the state itself to ensure that every indigenous
child be taught to read and write in the
language of his or her people, it
should then explore with indigenous peoples other ways of complying with
the requirements of the
1989 ILO Convention.[43]
It should also be emphasised that Article 27(3) does not appear to guarantee
entire instruction in indigenous languages, but only
that children of
indigenous peoples are to be taught to read and write the language of
their people.
Indeed, the tone of the 1989 ILO Convention is somewhat timid compared to
the provisions of the UN Declaration on the Rights of Indigenous
Peoples.
Recognising the right of indigenous peoples to self- determination in
Article 3 (by virtue of which they may freely determine
their political
status and pursue their economic, social and cultural development), the Declaration
then enumerates an impressive
series of rights which extend beyond what
has generally been considered mandatory for minority groups or
individuals, including:
1. The right to autonomy and
self-government (Article 3). 2.
The right to maintain and strengthen their distinct political,
economic,
social and cultural characteristics, as well as their legal systems, while retaining their rights to
participate fully,
if they so
choose, in the political, economic, social and cultural life of the
state (Article 4). 3. The right to be protected
from
"cultural" genocide, including the prevention of and redress for any act which has the aim or
effect of depriving
them of
their integrity as distinct societies, or of their cultural or ethnic characteristics or
identities, or any form of forced
assimilation or integration by imposition of other cultures or ways of life (Article 7). 4. The right to revitalize, use,
develop and
transmit to future generations
their histories, languages, oral traditions, philosophies, writing systems and
literatures, and to
designate and retain their own
names for communities, places and persons. Furthermore, states have the
obligation to take
effective measures to ensure this
right is protected (Article 14). 5. The right of indigenous children to
all levels and forms of education of the state. This is combined
with the right of all indigenous peoples to establish and
control
their educational systems and
institutions providing education in their own languages, in a manner appropriate to
their cultural
methods of teaching and
learning. Indigenous children living outside their communities still have the right
to be provided access to
education in their own culture
and language. Furthermore, states must take effective measures to
provide appropriate resources
for these purposes (Article
15). 6. The right to autonomy or
self-government, as a form of self-
determination, in matters relating to their internal and local affairs, including culture, religion, education,
information,
media, health,
housing, employment, social welfare, economic activities, land and resources management, environment and
entry
by non-members, as well
as taxation powers for financing these autonomous functions (Article 31). 7. The collective right
to determine their own
citizenship in accordance with
their customs and traditions, while maintaining the right to citizenship
of the states in
which they live, as well as the
right to determine the structures and to select the membership of their
institutions in accordance with
their own procedures (Article
32). 8. The right to
promote, develop and maintain their institutional
structures and their distinctive juridical
customs, traditions, procedures
and practices, as long as they conform to internationally
recognised human rights standards (Article
33).
In fact, the approach towards the rights of indigenous peoples in the UN Declaration
on the Rights of Indigenous Peoples, as compared
to the approach towards
the rights of minorities generally in instruments such as the International
Covenant on Civil and Political
Rights, is nothing short of striking. The
UN Declaration unequivocally suggests that indigenous peoples should
occupy a privileged
political and legal position: they should have the right
to autonomous governing and legal structures and institutions, including
some power of taxation and control over their resources. Linked to this
right to autonomy would be an inherent right to use their
indigenous
languages within their structures and institutions.
Moreover, it would seem that the state could be obligated to assist indigenous
peoples in "correcting" past injustices
and practices which amount
to "cultural" genocide. The weakness of some indigenous languages, particularly
in North America
and Australia, is due to assimilationist state policies,
often enforced brutally or at least against the will of indigenous
peoples,
with ensuing consequences in terms of economic and educational
advancement. According to Article 7, indigenous peoples would have
the
right to obtain redress from the principal offenders, namely public
authorities. Although the provision appears to be mainly
concerned with
the prevention of and redress for current state practices that deprive
indigenous peoples of their "integrity
as distinct societies, or of
their cultural or ethnic characteristics", it is certainly arguable that
some measure of redress
must be implemented since most of the original
causes of the present disintegration of indigenous cultures and languages
are attribuable
to state sponsored or condoned practices that were common
until fairly recently.
In the field of education, the UN Declaration proposes to go even further
than the 1989 ILO Convention. Whilst in the latter, the
extent of the
right to instruction of indigenous languages appears to be limited to the
acquisition of an ability to read and write
one's own indigenous language,
the right as proposed in Article 15 could extend to all levels and forms of
public education in indigenous
languages, in addition to the right to
establish and control private indigenous educational systems and institutions
supported by
state resources. In other
words, the UN Declaration now suggests that indigenous peoples, regardless
of the number of speakers of
their languages, should be entitled to be
educated through the medium of their language in public schools. The
unqualified wording
sets Article 15 apart from provisions relying on the
principle of non- discrimination where a state is entitled to limit the
number
of languages which may be used as medium of instruction in public
schools where it is reasonable and warranted because of the numbers
of
children involved. The UN Declaration is thus far more generous than those instruments
setting down rights to which speakers of
a minority or non-official
language would normally be entitled.
Although the principles of the Declaration, if they are ever adopted in a
final version, represent a noble expression of the willingness
to recognise
the needs and aspirations of indigenous peoples in a generous and flexible
way, it is difficult to envision how Article
15 can survive in its
present, unqualified, form. There are, for example, some indigenous peoples
which now only number a few hundred
speakers, and sometimes even fewer.[44]
It would appear quite literally impossible for a state to guarantee access
to education at
all levels in an indigenous language used by only a
handful of people. Conversely, this may also be the intent of the drafters
of
Article 15: the provision guarantees the right to public instruction in
an indigenous language except where it is impossible to do
so. Of course,
indigenous peoples themselves can always decide on varying degrees of use
of their language as medium of instruction.
Surprisingly, the UN Declaration on the Rights of
Indigenous Peoples does not mention that indigenous peoples are entitled
or
obligated to learn the official or majority language of the state they
inhabit, although in practice it is doubtful any indigenous
community
would wish to isolate itself completely from the rest of society.
Moreover, since the wishes of indigenous peoples are
paramount in these
matters, a state could not oblige upon indigenous peoples an
indigenous-language-only education policy which would
segregate them from
society at large.
3.2 Contemporary National Practices
"In societies with oral language traditions the languages provide an irreplaceable
repository of experience, history, mythology,
spiritual belief, law and
socio-cultural organisation and values. This derives from the very nature
of language itself, the major
mediator between experiences and thought and
culture. The Aboriginal interpretation of Australia - its landscape,
environment and
the experiences of its inhabitants - is among the most
ancient of any in the world. Being unique to this continent these languages
are an important an irreplaceable source of self-knowledge for Australia
and of inestimable value to Aborigines and their prospects
of cultural
survival.[45]
Governments in recent years have also begun to recognise the unique legal position
of indigenous peoples situated within their borders,
along with related
rights regarding the use, development and even revival of their languages.
Many states, such as Nicaragua, have
begun to abandon their integrationist
policies and are discussing the creation of special programmes to protect
indigenous language
rights.[46] Others such as the United States, Finland
and New Zealand have adopted specific legislation guaranteeing such
rights,
whilst others like Canada appear to be edging towards the same
direction.
For the Maoris in New Zealand, their language is guaranteed as a measure of
protection in the Treaty of Waitangi, signed between
this indigenous people
and the British Crown in the nineteenth century. The treaty provides that
the Maori people's treasures (taonga)
are to be protected by the Crown.
New Zealand courts have decided that the existence of close ties between
Maori culture and customs,
and their native language, te reo Maori,
signifies that language is one of the treasures of that indigenous people,
which the state
is required to protect,[47] and that this protection
includes, at least, the right to acquisition of that language by the Maori
people
in state-funded schools.[48]
Something similar is occurring in Scandinavian countries. The Finnish Parliament,
for example, has adopted a Sami Language Act which
provides, amongst other
things, for the legal right of the Sami to certain government and
educational services in their ancestral
language, even though there are
fewer than 50,000 Sami in the entire state. The Act recognises in its
preamble that the Sami have
these rights because of their unique position
in Finnish society.[49]
It is in the Province of Quebec and in the Northwest Territories[50] that indigenous
peoples in Canada find the greatest level of
protection and use of their
languages by public authorities and in public education, sometimes by way
of agreements with local or
regional indigenous governmental
authorities.[51] But in most Canadian provinces, indigenous peoples have
little or no right to use
their language with public authorities, and many
indigenous children do not receive in public schools any real opportunity
to acquire
an ability to read and write their language.
The United States has followed suite to international trends by recently adopting
the Native American Languages Act.[52] This appears
to be a recognition of
the special political status of indigenous peoples and corresponding
linguistic obligations on the part of
the federal government. US federal
obligations, because of this special relationship, include the duty to
work together with indigenous
peoples to ensure the survival of their
languages.[53]
The US policy to respect its obligations in this regard includes the following:
1. To preserve, protect and promote the rights and freedom of Native Americans to use, practice and
develop Native American
Languages. 2. To recognise the right of Indian tribes and other
Native American governing bodies
to use the Native American languages
as a medium of instruction in all schools funded by the Secretary of
the Interior. 3. To fully
recognise the inherent right
of Indian tribes and other Native American governing bodies, states,
territories, and possessions of
the United States to take
action on, and give official status to, their Native American languages
for the purpose of conducting
their own business.[54]
State-funded schools for indigenous peoples in the US can thus be obliged to
use indigenous languages as medium of instruction when
it is deemed desirable
by indigenous peoples themselves.
The indigenous people in the Danish territory of Greenland have also made important
gains, in line with international trends, in
the use of their language:
"There was a growing realisation that genuine emancipation of the Greenlandic
people and modernisation of their society was
impossible without
emancipating and modernising the indigenous language. When Home Rule came in 1979, it was agreed that Greenlandic
should be the main language... Since then, marked progress has taken
place. Greenlandic has become the medium of instruction in the
schools,
and, while Danish used to be taught from the first year onwards, it is now
delayed until the third year. It is also generally
acknowledged that even
children of Danish parents living in Greenland should learn
Greenlandic."[55]
In the French territory of New Caledonia, indigenous peoples have been granted
some autonomy powers, including the right to teach
their language and
culture in public schools.[56] In Nicaragua, the Atlantic Coast Autonomy
Law recognises the right of the Atlantic
Coast communities to preserve
their cultural identity, and their languages, as well as the right to use
and enjoy the waters, forests
and communal lands for their own
benefit. For example, Article 12(5)
provides that members of these indigenous communities are entitled
to
beeducated in their own languages, through programmes which take into
account their historical heritage, their traditions and
the
characteristics of their environment, all within the framework of the
national education system.
The degree of consistency in state practice and in the demands emanating from
indigenous peoples themselves point to a growing consensus
that indigenous
peoples, more than any other group, are entitled to some type of political
autonomy and to education in their native
language. The following demands
of the Mayas of Guatemala are surprisingly close to what appear to be the
evolving consensus at the
international level:
- Oficializar los idiomas Mayas a nivel de cada comunidad linguistica. - Hacer obligatorio el
aprendizaje y uso los idiomas Mayas
a los funcionarios de servicios publicos ubicados en regiones con poblacion Maya. Los funcionarios publicos
que no pertenecen
a la comunidad
linguistica en que prestan sus servicios, deben poseer el conocimiento y manejo corriente del idioma
propio de
dicha comunidad. -
Impartir justicia en el idioma Maya de acuerdo a la comunidad linguistica donde se procese al encausado.
-
Utilizar la lengua Maya de cada comunidad linguistica como lengua docente en los programas de educacion... -
Implementar programas
de emergencia para contribuir al rescate de las comunidades linguisticas en vas de
extincion (Xinkas, Itzaes, Tekos,
etc.)...
- Reestructurar el Ministerio de Educacion para que
presupuestaria, org nica y
estructuralmente desarrolle los subsistemas de
educacion del Pueblo Maya, Ladino, Xinka y al Garifuna. El Pueblo Maya debe disponer y decidir sobre sus
propias escuelas en
los diversos
niveles de la ense anza escolar, personal bilingue y propio material did ctico. - Sistematizar la
ense anza del
las ciencias, la tecnologa, las artes y la filosofia Maya, en sus distintos
niveles. El alumno Maya debe
conocer y aprender desde
su propia cosmovision ya que perfil y las directrices del Estado, reflejan otros
valores y otra vision del mundo. - El Estado debe
reconocer el derecho del
Pueblo Maya de disponer de sus
propias escuelas para la formacion de Maestros Bilingues para todos los
niveles y especialidades de
la labor escolar.[57] There
is of course reluctance in some states in this respect. Despite its
generally
flexible attitude concerning the Sami people and the use of their language
in public schools and by public authorities,
and despite the creation in
1992 of an elected Sami parliament (the Sametingslagen) of 31 members, the
Swedish government has rejected,
for example, calls for special language
legislation for the Sami. Two main reasons are cited: all Sami speak
Swedish, and such a
move would lead to similar demands from larger
linguistic groups.
Despite exceptions, both international and national law appear to be heading
towards increased recognition of the special position
which indigenous
peoples occupy within a society's legal and political order. They are not
simply another minority group, but would
seem to deserve greater latitude,
and also greater assistance, in the maintenance of their traditional
customs, practices and languages
than their demographic strength would
normally warrant when applying the right to non-discrimination or the
right to use their languages
with other members of their communities.
There is a visible trend at both levels signalling the unique relationship
between a state
and its indigenous peoples which would appear to require
concrete government measures allowing the continued use of these
languages,
and even correcting the results of previous assimilationist
practices by public authorities. At the very least, it would appear that
a
state has the obligation to provide the resources for the use of
indigenous languages as medium of instruction in education, which
reflects
the true desiDespite exceptions, both international and national law
appear to be heading towards increased recognition
of the special position
which indigenous peoples occupy within a society's legal and political
order. They are not simply another
minority group, but would seem to
deserve greater latitude, and also greater assistance, in the maintenance
of their traditional
customs, practices and languages than their
demographic strength would normally warrant when applying the right to
non-discrimination
or the right to use their languages with other members
of their communities. There is a visible trend at both levels signalling
the
unique relationship between a state and its indigenous peoples which
would appear to require concrete government measures allowing
the true
desires of the peoples involved when it is practical or possible to do so.
NOTES
1. The Aboriginal Language Policy Study Phase II: Implementation Mechanism
(1988), National Indian Brotherhood, Ottawa, at p. 91.
2. It should be remarked that in
international law, most of the rights ascribed to "indigenous
peoples" are also ascribed
to "tribal peoples", but that
both groups lack a clear and concise definition. In fact, many scholars
are at pains to truly
distinguish "indigenous" peoples from long- established
minorities such as the Basques, Berbers or Karens. In Alfredsson,
Gudmundur (1990), Report on Equality and Non-Discrimination: Minority
Rights, Council of Europe, Strasbourg, at p. 15, it is claimed
that the
"crucial factor in the definition of indigenous peoples is their original
inhabitation of the land on which, unlike
the minorities, they have lived
from time immemorial": if this were true, the Basques would constitute
an indigenous people.
More realistically, one scholar has admitted that it
is difficult to find a valid explanation to exclude some groups whilst
admitting
others. See Hannum, Hurst (1988), "New Developments in
Indigenous Rights", in Virginia Journal of International Law, Vol.
28, 649-678, at p. 664: "Some
governments, such as India and Bangladesh, wanted to limit the definition
to those peoples
in the Western Hemisphere and Australasia. Ultimately,
the Working Group opted for a "flexible" approach to avoid formal
adoption of a definition. Nonetheless, the governments of China, the USSR,
India, and Bangladesh continue to equate indigenousness
and colonisation,
thereby denying that there are any "indigenous" peoples within
their territories. Despite efforts to
suggest that only those peoples
invaded by European colonial powers or their descendants are "indigenous",
it seems clear
that Asian hill tribes such as the Karen and Hmong, and
Arab and African nomadic tribes, who pursue traditional life-styles,
should
also be included in a commonsense understanding of "indigenous."
Less certain would be the inclusion of Central Asian peoples
such as the
Armenians, Baluchis, Tatars, and Kurds, or survivors of overland invasions
by peoples of similar ethnicity, such as occurred
in Africa and much of
Asia."
3. See also generally Study of the Problem of Discrimination Against Indigenous
Populations, Jose R. Martinez Cobo, Special Rapporteur (1987), United Nations Publications, New
York. United Nations Treaty Series, Vol. 999.
4. Communication 24/1977, UN Document
A/36/40.
5. Communication 167/1984, UN Document
A/42/40.
6. Communication 197/1985, UN Document
A/43/40.
7. Report of the
Commission on the Situation of Human Rights of a Segment of the Nicaraguan
Population of Miskito Origin and Resolution
on the Friendly Settlement
Procedure Regarding the Human Rights Situation of a Segment of the
Nicaraguan Population of Miskito Origin,
OEA/Ser.L/V/II.62,
Document 26, 1984.
8. Indigenous peoples often resent being
identified as a minority because most of their demands are not based on
their status as
a numerical minority, but as a political entity whose
sovereignty they maintain has never been completely surrendered. Therefore,
they feel that to present their
demands couched in terms of a minority issue risks weakening the political
nature of their status
and claims.
9. (1934) 7 Hudson, World Court Reports
10.
10. See Articles 22 and 23 quoted in an excellent paper by Lerner, Nathan (1992),
"The 1989 ILO Convention on Indigenous Populations:
New Standards?",
in Yoram Dinstein and Mala Tabory (eds.), The Protection of Minorities and
Human Rights, Martinus Nijhoff,
Dordrecht, Netherlands, at p. 214.
11. Ibid.
12. Adopted 26 June 1957.
13. Thornberry, Patrick (1991), International Law and the Rights of Minorities,
Clarendon Press, Oxford, United Kingdom, at p. 362.
14. The most recent draft is UN Doc.
E/CN.4/Sub.2/1993/29.
15. Adopted 27 June 1989.
16. Quoted in de Varennes, Fernand
(1994), "L'article 35 de la Loi constitutionnelle de 1982 et la
protection des droits linguistiques
des peuples autochtones", in National Journal of Constitutional
Law, Vol. 4, N 3, 265-303, at p. 274.
17. Baron, Dennis E. (1990), The
English-Only Question: An Official Language for Americans?, Yale
University Press, New Haven,
USA, at p.165; see also Language of Inequality
(1985), N. Wolfson and J. Manes (eds.), Mouton Publishers, Berlin, at p.
174; and
Piatt, Bill (1990), Only English? Law and Language Policy in the United States, University of
New Mexico Press, Albuquerque, USA,
at pp. 4-5: "Policies of European colonists
and succeeding American administrations, some of which can only be
considered
genocidal, often resulted in the extermination of the native
peoples and languages. We are all too familiar with the long saga of
oppression and brutalization resulting in the herding of native Americans
onto isolated reservations. This herding, and the subsequent
attempts to
force native children into an English-speaking educational system and
environment, sought to achieve the so-called civilisation
of these peoples
including the replacement of their native tongues with English. In the
case of the conquistadores and their accompanying
religious figures, the
civilising language was Spanish.
18. Rubin, J.(1968), National Bilingualism in Paraguay, Mouton, den Haag,
Netherlands, at p. 480.
19. Vik R, Lars S. (1993), The Nordic Languages: Their Status and Interrelations,
Novus Press, Oslo, at p. 90.
20. Quoted in Language and Culture: A
Matter of Survival (1992), Australian Government Publishing Service,
Canberra, at p. 17.
21. Torres, Raidza (1991), "The Rights of Indigenous Populations: The Emerging
International Norm", in Yale Journal of
International Law, Vol.
16, 127-175, at p. 133.
22. Study of the Problem of Discrimination Against Indigenous Populations,
supra, note 2, at p. 11. See also Derecho Indigena y Derechos
Humanos en
America Latina (1988), Rodolfo Stavenhagen (ed.), Instituto Interamericano
de Derechos Humanos and El Colegio de Mexico,
Mexico, at pp. 346-347:
"Hasta que punto una poltica educativa respetuosa de las culturas indigenas
y que tienda a potencializar su desarollo din mico,
es compatible con la
idea motriz de unidad y desarollo nacional que es la ideologia dominante
en los paises latinoamericanos, constituye
uno de los debates mes agudos
de las sociedades nacionales lationamericanas actualmente. Hasta que punto los derechos sociales y
culturales de los pueblos consagrados en los pactos y otros instrumentos
internacionales pueden aplicarse a los grupos indigenas
del continente en
cuanto se refiere al derecho a recibir educacion en su propia lengua y a
la proteccin y respeto de su cultura por
el resto de la sociedad nacional
? La respuesta a esta pregunta, alrededor de la cual an no existe
consenso, tiene implicaciones
para las legislaciones de nuestros paises. En
un mondo cada vez mes integrado y dominado en escala universal por las
tendencias homogeneizadoras
de los medios de comunicacin de masas, los
derechos culturales de los pueblos y de las colectividades aparecen cada
vez con mayor
insistencia como uno de los derechos humanos b sicos o una
de las libertades fundamentales de esta epoca."
23. Stavenhagen, Rodolfo
(1990), "Linguistic Minorities and Language Policy in Latin America:
The Case of Mexico", in Florian
Coulmas (ed.), Linguistic Minorities
and Literacy: Language Policy Issues in Developing Countries, Mouton
Publishers, Berlin, pp.
56-62, at pp. 60-61.
24. Supra, note 19, at p. 91.
25. Gaceta oficial, 13 March 1992.
26. Gaceta oficial de la Repblica
del Paraguay, 11 September 1992.
27. Turcotte, D. (1982), Composition ethnique et politique linguistique en
Nouvelle- Calendonie: Adoption, implantation et diffusion
du francais comme
langue officielle et vehiculaire unique, International Centre for Research on Bilingualism, Quebec, at pp.
22-23.
28. See the status of the indigenous language in Groenland in Linguistic Rights
of Minorities (1994), Frank Horn (ed.), Northern
Institute for Environmental
and Minority Law, University of Lapland, Rovaniemi, Finland, at pp. 79-80;
Article 210 of the Constitution of Brazil which guarantees to indigenous
communities the use of their languages in regular basic education; and
Article 16, Ley 23.302
sobre la Politica Indigena y Apoyo a las
Comunidades Aborigenes, 8 November 1985, Boletin Oficial de la Republica
Argentina, 12 November
1985:
"La enseanza que se imparta en las
reas de asentamiento de las comunidades indgenas asegurar los contenidos curriculares previstos
en los
planes comunes y, adem s, en el nivel primario se adoptar una modalidad de trabajo consistente en
dividir el nivel en dos
ciclos: en los tres primeros aos, la enseanza se
impartir con la lengua indgena materna
correspondiente y se desarrollar como
materia
especial el idioma nacional; en los restantes aos, la enseanza
ser bilinge. Se promover la
formacin y capacitacin de docentes primarios
bilinges, con especial nfasis
en los aspectos antropolgicos, linguiticos y did cticos, como asimismo la
preparacion de textos y otros
materiales, a travs de la creacion de
centros y/o cursos especiales de nivel superior, destinados a estas
actividaded. Los establecimientos
primarios ubicados fuera de los lugares de asentamiento de las comunidades
indgenas, donde asistan nios aborgenes (que slo o predominantemente
se
expresen en lengua indgena) podr n adoptar la modalidad de trabajo
prevista en el presente artculo."
29. Fettes, Mark (1994),
"The International Context of Aboriginal Linguistic Rights", in Canadian
Centre for Linguistic
Rights Bulletin, Vol. 1, N 3, 6-11, at p. 10.
30. Les langues autochtones du Quebec (1992), Jacques Maurais (ed.), Les Publications
du Quebec, Quebec, at pp. 158-159:
"In
many primary schools administered by bands or by the
federal government, or which depend on the provincial administration, one
sees
the progressive introduction, in the area of language, of pilot
projects for bilingual education.
These are comprised for the most
part of pre-school education in
the vernacular language and, for the first five years of primary
education, the learning of English
or of French combined with various
periods where indigenous languages are taught, or where an indigenous
language is the language
of instruction.
Soon, according to government statistics from 1980 - 1981,
indigenous schools will be included in the study programmes
of 65% of
federal schools, 19% of provincial schools and 34% of schools administered
by bands. However, the development
of a true
indigenous programme, and its introduction in both primary and
secondary schools, remains for the majority of indigenous bands a
very
distant vision."
31. Ibid., at p. 168.
32. See for example Attorney General v. New Zealand Maori Council [1991],
2 N.Z.L.R. 129 (New Zealand), Attorney General v. New Zealand Maori
Council (No. 2) [1991], 2 N.Z.L.R. 147 (New Zealand), New Zealand Maori
Council v. Attorney General [1992], 2 N.Z.L.R. 576 (New Zealand).
33. Although the New Zealand legislation refers to the equal legal status of
English and te reo Maori, this is absolutely not the
true effect of the
provisions currently in place: for example, the right to use te reo Maori
in court proceedings only allows for
the assistance of an interpreter.
Whereas an English-speaking defendant will always have the right or
privilege to be judged in his
own language, the same is never available to
a Maori in his own language. To paraphrase George Orwell, some are more
equal than others.
For the situation in Australia, see Language and
Culture: A Matter of Survival, supra, note 20, at pp.
51-89.
34. See The Ethnic Dimension in International Relations (1993), Bernard Schechterman
and Martin Slann (eds.), Praeger, Westport,
Connecticut, at pp. 148-149,
regarding similar incidents involving indigenous peoples in Brazil and
Venezuela in the 1970s.
35. Globe and Mail, Toronto, 14 May 1994, at p. A10.
36. In another, non-violent, confrontation, some 800 Achuar, Quicha, and Shuar
marched from their villages to the capital city of
Quito, Ecuador, in
April 1992, galvanising several thousand more indigenous people to join them
along the way. In response, Ecuador's
president promised to accept a long-standing
demand regarding the use of indigenous languages as medium of instruction.
37. The Yaqui Nation of Arizona, supra, note 30, at p. 39.
38. Supra, note 21, at p. 158: "Because
United Nations sub-committees establish working groups nwhen they recognise
that
an issue is unique to a particular group or political situation, the
establishment of the Working Group suggests that after 1982
the United
Nations considered indigenous concerns to be substantially different from
those faced by other minorities... A number
of governments have also
recognised the unique nature of indigenous problems. Many states, such as
Nicaragua, are currently abandoning
their integrationist policies and are
discussing the creation of special aboriginal programmes to protect
indigenous rights. Other
countries, like Canada, while still not
recognising all indigenous rights, are at least consulting with indigenous
peoples and creating
special indigenous programs. Such developments have
led, albeit indirectly, to the crystallisation of an indigenous norm.
39. See in particular Article 14 and 15 of the proposed Declaration on the
Rights of Indigenous Peoples, supra, note 14.
40. Study of the Problem of Discrimination Against Indigenous Populations,
supra, note 2, at p. 18.
41. Ibid., at p. 20.
42. Many states acknowledge as part of their internal law that indigenous peoples
have either retained some degree of inherent sovereignty
that has not been
extinguished by conquest or control by invading or newly arrived peoples,
or have a continuing legal status that
clearly sets them apart. In the
United States, indigenous peoples are deemed to be "sovereign, domestic
dependent nations"
which have entered into a trust relationship with
the government and which are considered as distinct political entities.
Similarly
in Canada, it appears increasingly that indigenous peoples have
retained some degree of autonomy as political entities. The Samis
of
Scandinavia have made even more impressive gains during the last
10 years through the creation of Sami Parliaments, despite their current limited
role as consultative bodies. The Mayas of Guatemala
still maintain that
they have a surviving political right of autonomy. A number of Latin American
states, in particular Nicaragua
and Colombia, have granted to indigenous
communities extensive powers, at least partly in recognition of their
unique political status.
See amongst others Hannum, supra, note 2, at pp.
675-676; Torres, supra, note 21, at pp. 133-134; Melkevik, Bjarne (1992),
"L'organisation de l'autonomie politique autochtone : L'exemple des
Sams (Lapons) de Norvege", in Manitoba Law Journal,
Vol. 21, No. 3,
406-425, at p. 406; Consejo de Organizaciones Mayas de Guatemala (1991), Derechos
Especificos del Pueblo Maya, Editorial Cholsamaj,
Guatemala, at p. 13;
Cumming, Peter and Ginn, Diana (1986), "First Nations Self-Government
in Canada", in Nordic Journal
of International Law, Vol.
55, 86-116, at pp. 91-92; and the eloquent description of Thomas Berger, quoted
in Macklem, Patrick (1993), "Distributing Sovereignty:
Indian Nations
and Equality of Peoples", in Stanford Law Review, Vol. 45,
1311-1367, at p. 1328: "After
the Europeans came and occupied the continent, driving the Natives into
enclaves, even these
enclaves came under attack, because they were limited
to Native people. But they are political communities, founded on tradition
and culture, not on race. These political communities are not vestigial:
rather they are repositories of Native hopes and ideals
of self-government."
43. See also on this topic the recommendations in Study of the Problem of Discrimination
Against Indigenous Populations, supra, note
2, at pp.
16-18.
44. See the situation for many
indigenous languages in Canada in de Varennes, supra, note 16, at pp.
278-279.
45. Lo Bianco, Joseph (1987), National Policy on Languages, Australian Government
Publications Service, Canberra, at p. 10.
46. Even in states claiming to recognise the right of indigenous peoples to
be taught in their own language, there can be a number
of shortcomings, such
as the absence of schools in or near indigenous communities, the lack of
qualified teachers with the necessary
knowledge of the relevant indigenous
language and culture, and the absence of educational material in
indigenous languages. Moreover,
in teaching the official language, insufficient
care may be taken to prevent a pupil from being cut off from his mother
tongue, and
in many cases this continues to be a deliberate, if illegal or
inappropriate, objective. See on this point Study of the Problem of
Discrimination Against Indigenous Populations, supra, note 2, at p. 10,
and Des peuples enfin reconnus (1994), Marie Lger (ed.),
Editions
Acosociate, Montreal, at p. 178:
"Despite a constitutional provision allowing it, there is no
bilingual education
for indigenous children, the programme which is
delivered to them is the same as that which other schoolchildren in the
Republic
receive and it is given in Spanish. However, as a significant proportion of teachers is of Kuna
origin, that allows the de facto
adaptation of certain courses."
47. See New Zealand Maori Council v. Attorney General, [1992] 2 N.Z.L.R.
576 (New Zealand), and the preamble of the Maori Language Act, 1987:
"Whereas in the Treaty of Waitangi the Crown confirmed and guaranteed to the
Maori people, among other things, all their taonga:
And whereas the Maori
language is one such taonga..."
48. See generally Hastings, William K. (1988), The Right to an Education in
Maori: The Case From International Law, Victoria University
Press, Wellington,
New Zealand, at pp. 22-26. It should not be assumed that the recognised
obligations under the Waitangi Treaty
constitute absolute protection of
the rights of indigenous peoples to obtain services and benefits from
public authorities in their
own language. Courts in New Zealand have been
unwilling to impose a precise line of conduct upon the government in
observance of
the provisions of the Treaty unless a practice or decision
is shown to have been arrived at in an unreasonable fashion. In other
words, courts are reluctant to explore too closely the linguistic
obligations under the Treaty and prefer to leave the whole matter
to the
government itself. Thus, the Maori almost have to prove baf faith on the
part of the government before being able to obtain
any redress in court.
See on this point the reasoning in Attorney General v. New Zealand Maori
Council [1991], 2 N.Z.L.R. 129 (New Zealand), at p.
130: "Broadcasting
was a development of Western civilisation not foreseen by the makers of
the Treaty. Naturally the Treaty
does not specifically deal with it.
Nevertheless the Treaty principles of partnership and protection of taonga,
past neglect of them
at times, and New Zealand's international obligations
can be argued to combine to make it incumbent on the Crown to take
reasonable
steps to enable Maori language and culture to be promoted by
broadcasting. But there is no need to express an opinion on that argument,
because even on that approach I do not think that it could possibly be
said that the precise path to be followed could only be defined
by the
Courts. The Waitangi Tribunal and Parliament have accepted that the Treaty
guarantees protection for the Maori language as
a taonga, but the Treaty
certainly does not lay down what should be done for that purpose in
allocating radio frequencies. It is
a field in which, on any view, a range
of options is open. If the Government, giving due weight to the Treaty
principles, elects
between the available options reasonably and in good
faith, it seems to me that the Treaty is complied with."
49. See Act on the Use of the Sami Language before the Authorities, 8 March
1991/516. The rights of the Samis to be taught their
language in public
schools and to use it before public authorities in Norway and Sweden are
described in The Situation of Regional
or Minority Languages in Europe
(1994), Council of Europe, Strasbourg, at pp. 92-96 and
126-128, and Melkevik, Bjarne (1991), "Autochtones et droit : le
nouveau droit norvgien des Sams (Lapons)", in Les Cahiers
de Droit,
Vol. 32,
33-57, at pp. 43-54.
50. Supra, note 29, at p. 9.
51. Supra, note 30, at pp. 161-162. See also Article 88 of the Charte de
la langue francaise, 1993 Revised Statutes of Quebec, Chapter
C-11: "Notwithstanding sections 72 to
86, in the schools under the jurisdiction of the Cree School Board or the
Kativik
School board, according to the Cree, Inuit and Naskapi Public
Education Act, the languages of instruction shall be Cree and Inuktitut,
respectively, and the other languages of instruction in use in the Cree
and Inuit communities in Quebec on the date of the signing
of the
Agreement indicated in section 1 of the Act approving the Agreement
concerning James Bay and Northern Quebec (chapter C-67),
namely, 11
November 1975. The Cree School Board
and the Kativik School Board shall pursue as an objective the use of
French as a
language of French as a language of instruction so that pupils
graduating from their schools will in future be capable of continuing
their studies in a French school, college or university elsewhere in
Quebec, if they so desire. After consultation with the school
committees,
in the case of the Crees, and with the parents' committees, in the case of
the Inuit, the commissioners shall determine
the rate of instruction of
French and English as languages of instruction."
52. 30 October 1990, 104 STAT. 1153.
53. Ibid., at Article 102: (1)
the status of the cultures and languages of Native Americans is unique and the United States
has the responsibility to act
together with Native Americans to
ensure the survival of these unique cultures and languages;
(2) special status is
accorded Native Americans in the
United States, a status that recognises distinct cultural and political
rights, including the right
to continue separate
identities; (3) the traditional languages of Native Americans are an integral
part of their cultures and
identities and form the basic
medium for the transmission, and thus survival, of Native American
cultures, literatures,
histories, religions, political
institutions, and values;... (4) acts of suppression and extermination
directed against Native
American languages and cultures are in
conflict with the United States policy of self- determination
for Native Americans;...
54. Ibid., Article 104.
55. Supra, note 19, at p. 110.
56. Article 7, Loi no 88-82 du 22
janvier 1988 portant statut du territoire de la Nouvelle-Caledonie,
Journal officiel de la Republique
de France, 26 January 1988, at p. 1231
57. Consejo de Organizaciones Mayas de
Guatemala, supra, note 42, at pp. 14-19.
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