Note by the UNWGIP Chairperson-Rapporteur on criteria which might be applied when considering the concept of indigenous peoples - 21 June 1995
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DOCUMENT: INDIGDEF.TXT
U N I T E D N A T I O N S
Economic and Social Council ENGLISH
Distr. Original: ENGLISH
GENERAL
E/CN.4/Sub.2/AC.4/1995/3 GE. 95-12802 (E)
21 June 1995
COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of
Discrimination and Protection of Minorities
Working Group on Indigenous Populations
Thirteenth session
24-28 July 1995
Item 4 of the provisional agenda
STANDARD-SETTING ACTIVITIES: EVOLUTION OF STANDARDS
CONCERNING THE RIGHTS OF INDIGENOUS PEOPLE - NEW
DEVELOPMENTS AND GENERAL DISCUSSION OF FUTURE ACTION
Note by the Chairperson-Rapporteur of the Working Group on
Indigenous populations, Ms. Erica-Irene Daes, on criteria
which might be applied when considering the concept of
indigenous peoples
CONTENTS
PARAGRAPHS PAGE
INTRODUCTION . . . . . . . . . . . . . . . . 1 - 3 3
I. THE DESIRABILITY OF
DEVELOPING A DEFINITION
OF INDIGENOUS PEOPLES . . . . . . . . 4 - 7 3
II. EXISTING DEFINITIONS AND
WORKING DEFINITIONS . . . . . . . . . 8 - 10 4
III. CRITERIA WHICH MIGHT BE
CONSIDERED WHEN DELIBERATING
THE CONCEPT OF INDIGENOUS
PEOPLES . . . . . . . . . . . . . . . 11 5
IV. TRADITIONAL LANDS . . . . . . . . . . 12 6
E/CN.4/Sub.2/AC.4/1995/3
page 2
CONTENTS (continued)
PARAGRAPHS PAGE
V. HISTORICAL CONTINUITY . . . . . . . . 13 6
VI. DISTINCTIVE CULTURAL
CHARACTERISTICS . . . . . . . . . . . 14 - 15 6
VII. NON-DOMINANCE . . . . . . . . . . . . 16 7
VIII. SELF-IDENTIFICATION AND
GROUP CONSCIOUSNESS . . . . . . . . . 17 - 18 7
ANNEXES
I. Study of the Problem of Discrimination
against Indigenous Populations by Jose R.
Martinez Cob, Special Rapporteur of the
Subcommission on Prevention of
Discrimination and Protection of Minorities
(E/CN.4/Sub.2/1986/7/Add.4, paras. 379-382) . . . 9
II. Study of the Problem of Discrimination
against Indigenous Populations, Preliminary
report submitted by Jose R. Martinez Cobo,
Special Rapporteur of the Subcommission on
Prevention of Discrimination and Protection
of Minorities (E/CN.4/Sub.2/L.566, paras. 34
and 45) . . . . . . . . . . . . . . . . . . . . . 10
III. International Labour Organization Convention
concerning Indigenous and Tribal Peoples in
Independent Countries, 1989 (No. 169) . . . . . . 11
IV. The World Bank Operational Manual
Operational Directive 4.20, September 1991 . . . 12
E/CN.4/Sub.2/AC.4/1995/3
page 3
INTRODUCTION
1. In its resolution 1982/34 of 7 May 1982, the Economic and
Social Council authorized the Subcommission on Prevention of
Discrimination and Protection of Minorities to establish
annually a working group to meet in order to (a) review
developments pertaining to the promotion and protection of
human rights and fundamental freedoms of indigenous
populations, including information requested by the
Secretary-General annually from Governments, specialized
agencies, regional intergovernmental organizations and non-
governmental organizations in consultative status,
particularly those of indigenous peoples, and (b) give
special attention to the evolution of standards concerning
the rights of indigenous populations. At its first session
in 1982, members of the Working Group on Indigenous
Populations unanimously expressed the view that sources of
information should include those mentioned in Economic and
Social Council resolution 1982/34 plus other indigenous
organizations and groups as well as experts and recognized
authorities in the field (E/CN.4/Sub.2/1982/33, para. 21).
Since that time, the Working Group has maintained this open
and accessible character.
2. The purpose of the present note by the Chairperson-
Rapporteur is to introduce a number of criteria which might
be applied when considering the concept of indigenous
peoples. It is proposed that under the item of the agenda
entitled "Standard-setting activities", members of the
Working Group as well as representatives of observer
Governments and indigenous nations and organizations, and
independent experts offer their comments and observations.
3. At the twelfth session of the Working Group, the
Chairperson-Rapporteur stated in her concluding comments
that she considered that further consideration should be
given to conceptual matters such as criteria for defining
some of the terminology of the draft declaration. On that
occasion, she noted that, although the Working Group had
completed its draft of a declaration on the rights of
indigenous peoples, it still had an important role to play
in establishing a comprehensive framework of rights for
indigenous peoples and in providing expert opinion on
certain terms and concepts.
I. THE DESIRABILITY OF DEVELOPING A DEFINITION
OF INDIGENOUS PEOPLES
4. In this regard, the Chairperson-Rapporteur would submit
that an important first question to be addressed by the
Working Group is the desirability of developing a definition
of indigenous peoples. It might be argued that the Working
Group has enjoyed considerable success, developed a
comprehensive and widely accepted draft declaration, and
made numerous other contributions on the issue without
feeling a need to elaborate a definition of indigenous
peoples. A characteristic of the Working Group - for which
it has received high praise - is its liberal and democratic
spirit of openness, transparency and flexibility. Members of
the Working Group have insisted that no indigenous
community, organization, nation or even indigenous person
from whatever region should be denied the right to express
peacefully and without abuse an opinion or viewpoint. The
Working Group, under the previous and the present
Chairperson, has not refused the right of any indigenous
participant
E/CN.4/Sub.2/AC.4/1995/3
page 4
to take the floor at the sessions. In practice, therefore,
the absence of a rigorous definition has not impeded
progress under the two mandates of the Working Group.
5. Participation in the Working Group has expanded markedly
since its inception in August 1982. An examination of the
report of the Working Group on Indigenous Populations on its
twelfth session reveals that 163 indigenous organizations
were represented from 44 countries. However, it should be
emphasized that the presence of a group claiming to be
indigenous does not necessarily signify that it is accepted
as such by members of the Working Group.
6. It will be recalled that historically speaking,
indigenous peoples have suffered from definitions imposed by
others. For example, in the past the criterion for
membership of an indigenous population in certain countries
was based upon parentage or blood quotient and this is now
deemed discriminatory as it denies the right of indigenous
people to determine their own membership. For this and other
relevant reasons the Working Group would not consider it
appropriate to develop a definition of its own without full
consultation with indigenous peoples themselves.
7. Notwithstanding these qualifications and observations,
the Chairperson-Rapporteur is aware of the growing interest
from all sides indigenous peoples, Governments and
organizations in the United Nations system responsible for
operational programmes - for guidance regarding the concept
of indigenous peoples. It was noted, for example, that
during the twelfth session of the Working Group a few
indigenous representatives expressed the view that certain
of the participants claiming status as indigenous people
were not in fact so. Furthermore, several Governments which
have regularly attended the Working Group as observers have
stated - most recently at the fifty-first session of the
Commission on Human Rights - that there are no indigenous
people in their country. Finally, in the light of the
proclamation by the General Assembly of the International
Decade of the World's Indigenous People focusing on
operational activities, concerned United Nations agencies
will be obliged to ensure that the beneficiaries of special
programmes and projects are indigenous people. For the
above-mentioned reasons, it appears to the Chairperson-
Rapporteur that some preliminary discussion on concepts
related to the term indigenous peoples should take place
during the thirteenth session of the Working Group with a
view to guiding practice at the international level.
II. EXISTING DEFINITIONS AND WORKING DEFINITIONS
8. The Chairperson-Rapporteur takes this opportunity to
recall some principal studies, guidelines and legal
instruments having a bearing on the definition of indigenous
peoples. In the first place, reference may be made to the
"Study of the problem of discrimination against indigenous
populations" by the Special Rapporteur of the Subcommission
on Prevention of Discrimination and Protection of
Minorities, Mr. Jose R. Martinez Cobo (E/CN.4/Sub.2/1986/7
and Add. 1-4). In particular, chapter V entitled "Definition
of indigenous populations" and chapter XXII entitled
"Proposals and conclusions" can be noted. In the latter,
attention is drawn to paragraphs 379-382 which provide
E/CN.4/Sub.2/AC.4/1995/3
page 5
a definition of indigenous populations for the purposes of
international action (see annex I). The working definition
for the purposes of the Special Rapporteur's Study and
contained in the preliminary report on the Study
(E/CN.4/Sub.2/L.566 of 29 June 1972, paras. 34 and 45) may
also be considered as helpful (see annex II). It may be
recalled that the Economic and Social Council in its
decision 1985/137 of 30 May 1985 expressed its appreciation
for the report of the Special Rapporteur and requested its
publication and wide dissemination.
9. The Chairperson-Rapporteur also draws attention to the
International Labour Organization's Convention No. 169 of
1989 concerning indigenous and tribal peoples in independent
countries whose article I defines the peoples to whom the
Convention applies (see annex III). Finally, the definition
contained in the World Bank's Operational Directive 4.20 of
September 1991 may be of interest (see annex IV).
10. Since the Chairperson-Rapporteur's note is meant to
stimulate discussion rather than offer a thorough
consideration of the issue, reference is not made to the
question of definition as it is elaborated by scholars and
human rights experts whose observations may be of interest.
The Chairperson-Rapporteur is also aware of the diverse
legal definitions existing in different national contexts.
Finally, and most important, the viewpoint of indigenous
people on this question should be respected. The Working
Group considered all of the aforementioned sources in the
course of its deliberations of the draft declaration on the
rights of indigenous peoples. Thus, it may be noted that
article 8 of the draft declaration as agreed upon by members
of the Working Group and adopted by the Subcommission on
Prevention of Discrimination and Protection of Minorities
(resolution 1994/45, annex) states that "Indigenous peoples
have the collective and individual right to maintain and
develop their distinct identities and characteristics,
including the right to identify themselves as indigenous and
to be recognized as such". Article 32 of the draft
declaration states that "[i]ndigenous peoples have the
collective right to determine their own citizenship in
accordance with their customs and traditions ... .
Indigenous peoples have the right to determine the
structures and to select the membership of their
institutions in accordance with their own procedures".
III. CRITERIA WHICH MIGHT BE CONSIDERED WHEN
DELIBERATING THE CONCEPT OF INDIGENOUS PEOPLES
11. In the aforementioned Study prepared by the Special
Rapporteur, Mr. Martinez Cobo, a number of criteria were
identified as relevant in any efforts to elaborate a
definition. These include consideration of both objective
and subjective elements such as ancestry, cultural aspects
including religion, tribal organization, community
membership, dress and livelihood, language, group
consciousness, residence in certain parts of the country and
acceptance by the indigenous community
(E/CN.4/Sub.2/1986/7/Add.1, paras. 1-398). Taking into
account the comprehensive work carried out by the Special
Rapporteur and the experiences of the Working Group on
Indigenous Populations since its establishment in 1982, it
may be stated that the criteria are sufficient to determine
whether a person or a community is indigenous or not.
E/CN.4/Sub.2/AC.4/1995/3
page 6
IV. TRADITIONAL LANDS
12. Article 25 of the draft declaration on the rights of
indigenous peoples states that "[i]ndigenous peoples have
the right to maintain and strengthen their distinctive
spiritual and material relationship with the lands,
territories, waters and coastal seas and other resources
which they have traditionally owned or otherwise occupied or
used, and to uphold their responsibilities to future
generations in this regard". In drafting this article, the
Working Group recognized that a fundamental characteristic
of indigenous peoples was their historical continuity with
the territories they now occupy notwithstanding, as is
reflected in article 27 of the draft declaration, any
alienation of those lands which may have taken place over
time.
V. HISTORICAL CONTINUITY
13. Indigenous peoples, as noted by the Special Rapporteur,
have "a historical continuity with pre-invasion and pre-
colonial societies that developed on their territories"
(E/CN.4/Sub.2/1986/7/Add.4, para. 379). In his working
definition, the Special Rapporteur proposes this
formulation: "Indigenous populations are composed of the
existing descendants of the peoples who inhabited the
present territory of a country, wholly or partially, at the
time when persons of a different culture or ethnic origin
arrived there from other parts of the world, overcame them
and, by conquest, settlement or other means, reduced them to
a non-dominant or colonial situation ..."
(E/CN.4/Sub.2/L.566, para. 34). In this respect, it may be
noted that some writers refer to indigenous nations and
communities as "First Peoples".
VI. DISTINCTIVE CULTURAL CHARACTERISTICS
14. Indigenous peoples possess distinctive cultural
characteristics which distinguish them from the prevailing
society in which they live. The draft declaration refers to
these characteristics in numerous articles. For example,
article 4 recognizes the right of indigenous peoples to
maintain and strengthen their distinct political, social and
cultural characteristics, as well as their legal systems;
article 7 states that indigenous peoples should not be
subject to any form of assimilation or integration. Article
12 includes in the manifestations of indigenous culture
aspects such as archaeological and historical sites,
artifacts, designs, ceremonies, technologies and visual and
performing arts and literature as well as cultural,
intellectual, religious and spiritual property; article 14
refers to histories, languages, oral traditions,
philosophies, writing systems and literatures. Article 15 of
the draft declaration notes that indigenous peoples may have
distinctive methods of teaching and learning.
15. In article 21 of the draft declaration reference is
made, inter alia, to traditional and other economic
activities and article 24 provides for protection of
traditional medicine and health practices. Indigenous laws,
traditions and customs of land tenure are reflected in
article 26 and article 29 refers to indigenous sciences,
technologies and cultural
E/CN.4/Sub.2/AC.4/1995/3
page 7
manifestations, including human and other genetic resources,
seeds, medicines, knowledge of the properties of fauna and
flora, oral traditions, literatures, designs, and visual and
performing arts. Note may also be taken of article 33 where
the fact that indigenous peoples may have distinctive
juridical customs, traditions, procedures and practices is
recognized. These articles identify some of the elements of
indigenous culture which distinguish it from the wider
society in which it finds itself.
VII. NON-DOMINANCE
16. Indigenous peoples constitute a non-dominant part of the
population of the countries in which they live. Under the
agenda item "Review of developments", members of the Working
Group have been able to listen, over the years, to a wide
range of information from representatives of indigenous
peoples which indicate their non-dominant status. Very often
this information has been shared by representatives of
observer Governments. It may be noted that, generally
speaking, indigenous people in all countries have lower
incomes than the average citizen and are more likely to be
unemployed. Indigenous peoples suffer worse health
conditions than others in society and have less access to
educational opportunities. In certain countries indigenous
people may not be represented or may be underrepresented in
political institutions and public life. Furthermore, as a
result of their weak political situation as well as the
absence of recognized title over the lands on which they
live, indigenous peoples are sometimes subject to removal
from their homelands and a consequent pauperization and
marginalization. These and other factors constitute for
indigenous peoples a significant obstacle to their human
rights.
VIII. SELF-IDENTIFICATION AND GROUP CONSCIOUSNESS
17. Two further aspects may be considered by the Working
Group in connection with the concept of indigenous peoples.
Firstly, it may be noted that indigenous peoples themselves
have stated on numerous occasions that they are the rightful
authority to define and determine whether they are
indigenous and how membership is attributed. Articles 8, 9
and 32 of the draft declaration go some way to reflect this
concern. Secondly, members of the Working Group are aware of
the sense of group consciousness which has developed among
indigenous peoples over recent years. In certain countries
in the past indigenous peoples felt shame or fear to
identify themselves as indigenous; today, happily, there has
been a reversal of this trend and members of indigenous
communities are proud to be so recognized. At the
international level, a sense of common vision and experience
appears to prevail among many hundreds of peoples from all
regions of the world.
18. The Chairperson-Rapporteur notes that the question of
indigenous peoples is developing continually as more people
from different regions seek to participate in the Working
Group and other international activities. It has been a
fundamental tenet of the Working Group that flexibility,
openness and a spirit of harmonious reflection and exchange
should prevail at its sessions. The Chairperson-Rapporteur
would not seek to change this philosophy. However,
E/CN.4/Sub.2/AC.4/1995/3
page 8
as more peoples come year by year to the Working Group, it
is time to make an effort to understand better what
indigenous peoples consider to be their common
characteristics and aspirations. The Chairperson-Rapporteur
hopes that the above-mentioned comments and criteria will
constitute a basis for a constructive exchange of views with
the other members of the Working Group, and representatives
of Governments, indigenous peoples and specialized agencies
with the main purpose of protecting the Working Group as a
liberal and democratic forum and the interests of indigenous
peoples themselves.
E/CN.4/Sub.2/AC.4/1995/3
page 9
ANNEX I
STUDY OF THE PROBLEM OF DISCRIMINATION AGAINST INDIGENOUS
POPULATIONS BY JOSE R. MARTINEZ COBO, SPECIAL RAPPORTEUR OF
THE SUBCOMMISSION ON PREVENTION OF DISCRIMINATION AND
PROTECTION OF MINORITIES
(E/CN.4/SUB.2/1986/7/ADD.4, PARAS. 379-382)
379. Indigenous communities, peoples and nations are those
which, having a historical continuity with pre-invasion and
pre-colonial societies that developed on their territories,
consider themselves distinct from other sectors of the
societies now prevailing in those territories, or parts of
them. They form at present non-dominant sectors of society
and are determined to preserve, develop and transmit to
future generations their ancestral territories, and their
ethnic identity, as the basis of their continued existence
as peoples, in accordance with their own cultural patterns,
social institutions and legal systems.
380. This historical continuity may consist of the
continuation, for an extended period reaching into the
present, of one or more of the following factors:
(a) Occupation of ancestral lands, or at least of part
of them;
(b) Common ancestry with the original occupants of
these lands;
(c) Culture in general, or in specific manifestations
(such as religion, living under a tribal system,
membership of an indigenous community, dress, means
of livelihood, lifestyle, etc.);
(d) Language (whether used as the only language, as
mother-tongue, as the habitual means of
communication at home or in the family, or as the
main, preferred, habitual, general or normal
language);
(e) Residence in certain parts of the country, or in
certain regions of the world;
(f) Other relevant factors.
381. On an individual basis, an indigenous person is one who
belongs to these indigenous populations through self-
identification as indigenous (group consciousness) and is
recognized and accepted by these populations as one of its
members (acceptance by the group).
382. This preserves for these communities the sovereign
right and power to decide who belongs to them, without
external interference.
E/CN.4/Sub.2/AC.4/1995/3
page 10
ANNEX II
STUDY OF THE PROBLEM OF DISCRIMINATION AGAINST INDIGENOUS
POPULATIONS, PRELIMINARY REPORT SUBMITTED BY JOSE R.
MARTINEZ COBO, SPECIAL RAPPORTEUR OF THE SUB-COMMISSION ON
PREVENTION OF DISCRIMINATION AND PROTECTION OF MINORITIES
(E/CN.4/SUB.2/L.566, PARAS. 34 AND 45)
34. In the light of these historical considerations, the
following working definition is proffered:
"Indigenous populations are composed of the existing
descendants of the peoples who inhabited the present
territory of a country wholly or partially at the time
when persons of a different culture or ethnic origin
arrived there from other parts of the world, overcame
them and, by conquest, settlement or other means,
reduced them to a non-dominant or colonial condition;
who today live more in conformity with their particular
social, economic and cultural customs and traditions
than with the institutions of the country of which they
now form part, under a State structure which
incorporates mainly the national, social and cultural
characteristics of other segments of the population
which are predominant."
45. ISOLATED OR MARGINAL POPULATIONS. Although they have not
suffered conquest or colonization, isolated or marginal
population groups existing in the country should also be
regarded as covered by the notion of "indigenous
populations" for the following reasons: (a) they are
descendants of groups which were in the territory of the
country at the time when other groups of different cultures
or ethnic origins arrived there; (b) precisely because of
their isolation from other segments of the country's
population they have preserved almost intact the customs and
traditions of their ancestors which are similar to those
characterized as indigenous; (c) they are, even if only
formally, placed under a State structure which incorporates
national, social and cultural characteristics alien to
theirs.
E/CN.4/Sub.2/AC.4/1995/3
page 11
ANNEX III
INTERNATIONAL LABOUR ORGANIZATION CONVENTION CONCERNING
INDIGENOUS AND TRIBAL PEOPLES IN INDEPENDENT COUNTRIES,
1989 (NO. 169)
ARTICLE 1
1. This Convention applies to:
(a) tribal peoples in independent countries whose
social, cultural and economic conditions
distinguish them from other sections of the
national community, and whose status is regulated
wholly or partially by their own customs or
traditions or by special laws or regulations;
(b) peoples in independent countries who are regarded
as indigenous on account of their descent from the
populations which inhabited the country, or a
geographical region to which the country belongs,
at the time of conquest or colonization or the
establishment of present State boundaries and who,
irrespective of their legal status, retain some or
all of their own social, economic, cultural and
political institutions.
2. Self-identification as indigenous or tribal shall be
regarded as a fundamental criterion for determining the
groups to which the provisions of this Convention apply.
3. The use of the term "peoples" in this Convention shall
not be construed as having any implications as regards the
rights which may attach to the term under international law.
E/CN.4/Sub.2/AC.4/1995/3
page 12
ANNEX IV
WORLD BANK OPERATIONAL MANUAL OPERATIONAL
DIRECTIVE 4.20, SEPTEMBER 1991
3. The terms "indigenous peoples," "indigenous ethnic
minorities," "tribal groups," and "scheduled tribes"
describe social groups with a social and cultural identity
distinct from the dominant society that makes them
vulnerable to being disadvantaged in the development
process. For the purposes of this directive, "indigenous
peoples" is the term that will be used to refer to these
groups.
4. Within their national constitutions, statutes, and
relevant legislation, many of the Bank's borrower countries
include specific definitional clauses and legal frameworks
that provide a preliminary basis for identifying indigenous
peoples.
5. Because of the varied and changing contexts in which
indigenous peoples are found, no single definition can
capture their diversity. Indigenous people are commonly
among the poorest segments of a population. They engage in
economic activities that range from shifting agriculture in
or near forests to wage labour or even small-scale market-
oriented activities. Indigenous peoples can be identified in
particular geographical areas by the presence in varying
degrees of the following characteristics:
(a) a close attachment to ancestral territories and to
the natural resources in these areas;
(b) self-identification and identification by others as
members of a distinct cultural group;
(c) an indigenous language, often different from the
national language;
(d) presence of customary social and political
institutions; and
(e) primarily subsistence-oriented production.
Task managers (TMs) must exercise judgement in determining
the populations to which this directive applies and should
make use of specialized anthropological and sociological
experts throughout the project cycle.
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