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The International Labour Organization and Its Contribution to the Protection of the Rights of Indigenous Peoples

Published online by Cambridge University Press:  09 March 2016

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Summary

From its very inception, the International Labour Organization (ILO) has been a pioneer in addressing indigenous peoples’ issues, albeit initially from a culturally biased, integrationist perspective. Its contributions have progressed from the preparation of studies on the working conditions of indigenous peoples in the 1920s, to the elaboration of recommendations and conventions on indigenous labour rights in the early 1940s and 1950s, and most recently to the adoption of legally binding instruments recognizing a broader range of indigenous rights, such as those pertaining to land and resources, which are at the top of indigenous peoples’ agendas. This article reviews and assesses these developments with a particular focus on ILO Convention nos. 107 (1957) and 169 (1989). The author concludes that, setting aside its initially assimilationist orientation, the ILO has made invaluable contributions in partial satisfaction of indigenous demands and has succeeded in establishing a solid floor of basic, minimum prerequisites for the safeguarding of the dignity and rights of these most disadvantaged, both historically and presently, peoples.

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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2012

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References

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19 See Convention no. 107, supra note 15, Article 1(1)(a). See also Douglas Sanders, “The Re-emergence of Indigenous Questions in International Law” (1983) 1 Can Hum Rts YB 3 at 19; Thornberry, supra note 11 at 327.

20 The convention simply requires governments to “seek the collaboration” of the populations concerned and their representatives in applying its provisions, without clarifying what seeking collaboration entails. See Convention no. 107, supra note 15, Article 5(a). See also Colborn, James WInternational Labour Organization Convention Number 169: Celebrate the Differences” (1994) 2 Willamette Bulletin Int’l L and Pol’y 1 at 4.Google Scholar However, while the convention makes no provision for the direct participation of indigenous populations in government decision-making procedures, it has been interpreted by the Committee of Experts on the Application of Conventions and Recommendations (which is charged with reviewing reports submitted by states on their compliance with the commitments they have assumed) as requiring consultation with the peoples concerned in planning and implementing development programs. See Lawrence Barsh, RusselAn Advocate’s Guide to the Convention on Indigenous and Tribal Peoples” (1990) 15 Okla City UL Rev 209 at 212.Google Scholar

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63 Convention no. 169, supra note 44, Articles 1–12.

64 Ibid, Articles 13–19.

65 Ibid, Article 20.

66 Ibid, Articles 21–23.

67 Ibid, Articles 24–25.

68 Ibid, Articles 26–31.

69 Ibid, Article 32.

70 Ibid, Article 33.

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106 Eg, Convention no. 169, supra note 44, Articles 1(3), 6(2), 7(1), 15, 16.

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112 Peña Guzmán, Mireya MaritzaThe Emerging System of International Protection of Indigenous Peoples’ Rights” (1996) 9 St Thomas L Rev 251 at 257 Google Scholar; Thornberry, supra note 11 at 342–43.

113 Jackson, MoanaThe Face behind the Law: The United Nations and the Rights of Indigenous Peoples” (2005) 8 YB of New Zealand Jurisprudence 10 at 19.Google Scholar

114 See Barsh, Russel LawrenceIndigenous Peoples in the 1990s: From Object to Subject of International Law?” (1994) 7 Harv Hum Rts J 33 at 44.Google Scholar

115 Michael Halewood, “Indigenous and Local Knowledge in International Law: A Preface to Sui Generis Intellectual Property Protection” (1999) 44 McGill LJ 953 at 958.

116 Wiemers, ServThe International Legal Status of North American Indians after 500 Years of Colonization” (1992) 5 Leiden J Int’l L 69 at 75.CrossRefGoogle Scholar

117 Convention no. 169, supra note 44, Article 1(3). See Rodríguez-Piñero, Luis Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime (1919–1989) (Oxford: Oxford University Press, 2005) at 307–8Google Scholar; Thornberry, supra note 11 at 343–44.

118 Eide, Asbjørn, “Rights of Indigenous Peoples: Achievements in International Law during the Last Quarter of a Century” (2007) 4 Gáldu Cála/Journal of Indigenous Peoples’ Rights 40 at 73.Google Scholar

119 See Alfredsson, GudmundurHuman Rights Challenges in the Arctic,” in Heininen, Laisi and Laine, Kari eds, The Borderless North (Oulu: Thule Institute, University of Oulu, Northern Research Forum, 2008) 150 at 152 Google Scholar; Ulfstein, GeirIndigenous Peoples’ Right to Land” (2004) 8 Max Planck YB of UN L 1 at 12.Google Scholar

120 See Moses, TedRenewal of the Nation,” in Alfredsson, Gudmundur and Stavropoulou, Maria eds, Justice Pending: Indigenous Peoples and Other Good Causes — Essays in Honour of Erica-Irene A. Daes (The Hague: Martinus Nijhoff, 2002) 57 at 63 Google Scholar, noting that “very few indigenous peoples anywhere in the world are secessionists.” See also Huff, AndrewIndigenous Land Rights and the New Self-Determination” (2005) 16 Colo J Int’l Envtl L and Pol’y 295 at 320,Google Scholar noting that the insistence of states on invoking chaotic consequences that could ensue on the international stage from the recognition of indigenous peoples’ right to self-determination appears obtuse in view of those peoples’ repeated declarations that secession is not their object. According to Huff, this argument was advanced to cover states’ fears of losing control over natural resources (and their related benefits).

121 For an illustrative overview of the thesis of many indigenous peoples on the issue of self-determination, see the joint submission of a number of indigenous groups to the Working Group Established in Accordance with UN Commission on Human Rights Resolution 1995/32, “‘General Provisions’ of the Draft U.N. Declaration on the Rights of Indigenous Peoples,” UN Doc E/CN.4/2005/ WG.15/CRP.2 (24 November 2005).

122 “In the ILO Convention, a provision was added as paragraph 3 of Article 1 stating: ‘The use of the term “peoples’ in this Convention shall not be construed as having any implications regarding the rights which may attach to the term under international law.’ This has been taken by some — in particular by some representatives of indigenous and tribal peoples — to mean that the ILO Convention denies that those covered by it have the right to self-determination. This is clearly not the case, however; the International Labour Conference simply took the position that the question of self-determination was for the United Nations to resolve, not for the ILO.” International Labour Office, “Comments on the Draft United Nations Declaration on the Rights of Indigenous Peoples,” UN Doc E/CN.4/ 1995/119 (6 February 1995) at paras 14–15 [emphasis added]. See also Niezen, Ronald The Origins of Indigenism: Human Rights and the Politics of Identity (Berkeley, CA: University of California Press, 2003) at 162,CrossRefGoogle Scholar noting that: “[i]n effect, the ILO, in the interests of realizing a convention that would meet the immediate needs of indigenous peoples, postponed the debate on indigenous self-determination by handing it over to its parent body, the United Nations.”

123 See Cleveland, PatrickApposition of Recent U.S. Supreme Court Decisions Regarding Tribal Sovereignty and International Indigenous Rights Declarations” (2000) 12 Pace Int’l L Rev 397 at 409.Google Scholar

124 As has been noted: “It is interesting that an International Organization is telling over 350 million people that they don’t exist as peoples. It raises the question of whose rights are protected: those of the indigenous peoples or the non indigenous peoples?” Joona, TanjaILO Convention no. 169 — A Solution for Land Disputes in the Nordic Countries?” in Heininen, and Laine, , supra note 119, 155 at 162 Google Scholar; Venne, supra note 86 at 56, commenting sarcastically that “[p]erhaps the revised Convention should be called the Convention concerning nonindigenous Peoples in Indigenous Peoples’ Territories and Their Right to Exist in Those Territories.” Strelein, supra note 107 at 70, criticizing the ILO’s thesis that the issue of self-determination is outside the scope of an ILO instrument as a reflection of its inappropriateness as a forum to accommodate indigenous peoples’ concerns.

125 See Anaya, JamesIndigenous Law and Its Contribution to Global Pluralism” (2007) 6 Indigenous LJ 3 at 6 Google Scholar; see also Barsh, supra note 20 at 215, observing: “Indeed, the convention’s use of the term “peoples,” while deprived of its usual connotation under international law, was accepted as a way of affirming that indigenous peoples have ‘an identity of their own’ and comprise organized societies rather than ‘mere groupings’ of individuals sharing some racial or ethnic characteristics.”

126 See Anaya, S JamesIndian Givers: What Indigenous Peoples Have Contributed to International Human Rights Law” (2006) 22 Wash U JL & Pol’y 107 at 112.Google Scholar According to Thornberry, the convention’s “commitment to collective rights is remarkable and thoroughgoing.” Thornberry, supra note 11 at 366–67. Rodríguez-Piñero for his part argues that “[f]ramed by the recognition of indigenous peoples as ‘peoples,’ Convention no. 169 takes a decisive stand on the collective nature of indigenous rights, transforming what the earlier convention defined as an object of applied anthropological concern into a collective subject of rights.” Rodríguez-Piñero, supra note 117 at 321. Compare with Donders, who notes that this collective approach does not take “the form of substantive collective rights adjudged to indigenous peoples as such, but instead reflects State obligations towards these peoples. Thus, indigenous peoples are not subjects of these provisions, but their beneficiaries. Donders, YvonneThe UN Declaration on the Rights of Indigenous Peoples: A Victory for Cultural Autonomy?” in Boerefijn, Ineke and Goldschmidt, Jenny eds, Changing Perceptions of Sovereignty and Human Rights: Essays in Honour of Cees Flinterman (Antwerp: Intersentia,2008) 99 at 113.Google Scholar

127 See Henriksen, John B Scheinin, Martin and Ahrén, MattiasThe Saami People’s Right to Self-Determination” (2007) 3 Gáldu Cála / Journal of Indigenous Peoples’ Rights 52 at 59.Google Scholar

128 United Nations Declaration on the Rights of Indigenous Peoples, UNGA Res 61/295, UN Doc A/RES/61/295 (13 September 2007), Articles 4, 46(1) [UNDRIP]. See Koivurova, TimoSovereign States and Self-Determining Peoples: Carving Out a Place for Transnational Indigenous Peoples in a World of Sovereign States” (2010) 12 Int’l Comm L Rev 191 at 201–3.Google Scholar

129 “The Convention does, however, aim to create the conditions necessary for ‘self-management’ by indigenous peoples, defined with reference to the pre-amble’s call for ‘control over their own institutions,’ which is apparently synonymous with at least some degree of ’self government.’” Fromherz, Christopher JIndigenous Peoples’ Courts: Egalitarian Juridical Pluralism, Self-Determination, and the United Nations Declaration on the Rights of Indigenous Peoples” (2008) 156 U Pa L Rev 1341 at 1366.Google Scholar Along the same lines, Alfredsson observes that “even if the ILO Convention does not employ the term ‘autonomy,’ it is in fact dealing with group control over functions which have traditionally been delegated to autonomous regimes and which are necessary for maintaining group identity and culture.” Alfredsson, GudmundurIndigenous Peoples and Autonomy,” in Suksi, Markku ed, Autonomy: Applications and Implications (The Hague: Kluwer Law International, 1998) 125 at 127.Google Scholar Thornberry holds that “[i]n as far as self-determination is increasingly understood to contain an internal aspect, it may be that certain aspects of self-determination can be read into Convention 169 — notably in the area of participation rights and self-government.” Thornberry, supra note 11 at 344. According to Xanthaki, the convention “seems to contain the possibility of cultural autonomy.” Xanthaki, AlexandraIndigenous Cultural Rights in International Law” (2000) 2 Eur JL Ref 343 at 348.Google Scholar Barsh argues that “[a]lthough the new convention does not refer explicitly to a right to self-determination, self-government, or autonomy, it plainly achieves the same result indirectly. It guarantees respect for indigenous ‘institutions’ generally and refers to a wide variety of specific rights of collective action.” Barsh, supra note 20 at 215. Ulfstein notes that “the Convention provides for extensive rights of participation in decision making, which is an important part of internal self-determination.” Ulfstein, supra note 119 at 12. For a view holding that Convention no. 169 grants “no effective rights of autonomy,” see Keal, Paul European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Society (Cambridge: Cambridge University Press, 2003) at 116.CrossRefGoogle Scholar

130 See UN Secretariat of the Permanent Forum on Indigenous Issues, “Contribution of the ILO,” International Workshop on Free, Prior and Informed Consent and Indigenous Peoples (New York, 17–19 January 2005), UN Doc PFII/2005/ WS.2/4, para 2 [Contribution of the ILO].

131 Kawashima, SaekoThe Right to Effective Participation and the Ainu People” (2004) 11 Int’l J on Minority & Group Rights 21 at 2829.Google Scholar

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133 Convention no. 169, supra note 44, Article 6(1)(a). See Marks, GregAvoiding the International Spotlight: Australia, Indigenous Rights and the United Nations Treaty Bodies” (2002) 2 Hum Rts L Rev 19 at 50.Google Scholar

134 ILO, Report of the Committee Set up to Examine the Representation Alleging non-Observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), made under Article 24 of the ILO Constitution by the Confederación Ecuatoriana de Organizaciones Sindicales Libres (CEOSL), 14 November 2001, ILO Doc (GB.277/18/1):(GB.282/14/4) at para 44 [Ecuador Report].

135 Convention no. 169, supra note 44, Article 6(2). See Swepston, LeeThe ILO Indigenous and Tribal Peoples Convention (no. 169): Eight Years after Adop-tion,” in Cohen, Cynthia Price ed, Human Rights of Indigenous Peoples (Ardsley, NY: Transnational Publishers, 1998) 17 at 23.Google Scholar

136 “The Committee recalls that in the discussion concerning the adoption of Article 6 of the Convention on prior consultation, a representative of the Secretary-General stated that in drafting the text the Office had not intended to suggest that the consultations referred to would have to result in the obtaining of agreement or consent of those being consulted, but rather to express an objective for the consultations.” Ecuador Report, supra note 134 at para 39.

137 See Barelli, MauroFree, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead” (2012) 16 Int’l JHR 1 at 6 Google Scholar; Heinämäki, LeenaProtecting the Rights of Indigenous Peoples -Promoting the Sustainability of the Global En-vironment?” (2009) 11 Int’l Comm L Rev 3 at 36.CrossRefGoogle Scholar

138 See Venne, supra note 86 at 58–59, arguing that “consultation” “is used as an alibi to say that they did ask us, but there is no requirement to implement our position” and further concluding that it is better “to ignore the consultation game and & insist on consent as a prerequisite to any project that affects our life & Anything short of this minimum will be rejected.” See also Thornberry, supra note 11 at 349, noting that from the perspective of some indigenous peoples, the Convention “did not properly recognize the crucial requirement of indigenous consent.”

139 See Strelein, supra note 107 at 77, criticizing the notion that the consent of indigenous peoples may not be required where decisions directly affect them as illustrative of “the paternal statist approach of Convention 169.”

140 Barsh, supra note 20 at 219-20. See also Colborn, supra note 20 at 5.

141 Tahvanainen, AnnikaThe Treaty Making Capacity of Indigenous Peoples” (2005) 12 Int’l J Minority & Group Rights 397 at 414 [emphasis in original].CrossRefGoogle Scholar See also ILO, Report of the Committee Set up to Examine the Representation Alleging Non-Observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), Made under Article 24 of the ILO Constitution by the Central Unitary Workers’ Union (CUT) and the Colombian Medical Trade Union Association, 14 November 2001, ILO Doc (GB.277/18/1):(GB.282/14/4) at para 61 [Colombia Report], noting that “[i]n the opinion of the Committee, while Article 6 does not require consensus to be obtained in the process of prior consultation, it does provide that the peoples concerned should have the possibility to participate freely at all levels in the formulation, implementation and evaluation of measures and programmes that affect them directly.”

142 See, eg, Colombia Report, supra note 141 at para 90, where “[t]he Committee considers that the concept of consultation with the indigenous communities that might be affected with a view to exploiting natural resources must encompass genuine dialogue between the parties, involving communication and understanding, mutual respect and good faith, and the sincere desire to reach a consensus. A meeting conducted merely for information purposes cannot be considered as being consistent with the terms of the Convention. Furthermore, according to Article 6, the consultation must be ‘prior’ consultation, which implies that the communities affected are involved as early on as possible in the process, including in environmental impact studies.”

143 Convention no. 169, supra note 44, Article 6(1)(b) [emphasis added]. See Pritchard, SarahNative Title from the Perspective of International Standards” (1997) 18 Australian YB of Int’l L 127 at 162.Google Scholar

144 Ulfstein, supra note 119 at 15. See also Strelein, supra note 107 at 80, commenting that “[t]his kind of participation, which enshrines the ‘majority rules’ syndrome, fails to accommodate marginalised groups. Similarly, the argument that all individuals should be treated equally does not accept preferential rights that must be recognized in order to rectify historical and current marginalisation by the democratic majority.”

145 See Venne, supra note 86 at 59, observing that “[i]n many instances, our people have become involved in the administrative framework of the government. The result has been that our own people become the tools of assimilation … When an indigenous person is elected within the political framework of the non-indigenous system, an onus is placed on that person to follow ‘the rules of the game’, a game which has historically involved our dispossession … This is not a solution for us. For to be included in their way is the ultimate goal of assimilation.” See also Strelein, supra note 107 at 80.

146 See Barsh, supra note 20 at 220, n 46.

147 Convention no. 169, supra note 44, Article 7(4). See Shelton, DinahHuman Rights, Environmental Rights and the Right to Environment” (1991) 28 Stan J Int’l L 103 at 127.Google Scholar

148 Convention no. 169, supra note 44, Article 7(2). See Myntti, KristianThe Right of Indigenous Peoples to Participate in Development Projects” (2002) 8 Human Rights & Development YB 225 at 245.CrossRefGoogle Scholar

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150 Convention no. 169, supra note 44, Article 7(1). See Macklem, PatrickIndigenous Rights and Multinational Corporations at International Law” (2001) 24 Hastings Int’l and Comp L Rev 475 at 479.Google Scholar

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152 ILO, Report of the Committee Set up to Examine the Representation Alleging non-Observance by Bolivia of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), Made under Article 24 of the ILO Constitution by the Bolivian Central of Workers (COB), March 1999, ILO Doc (GB.272/8/1):(GB.274/16/7) at para 39 [Bolivia Report].

153 Convention no. 169, supra note 44, Article 7(3). See Quane, HelenThe Rights of Indigenous Peoples and the Development Process” (2005) 27 Hum Rts Q 652 at 669.CrossRefGoogle Scholar

154 See Venne, supra note 86 at 60; Joona, supra note 124 at 162.

155 See UN Economic and Social Council, Report of the Secretary-General on the Preliminary Review by the Coordinator of the International Decade of the World’s Indigenous Peoples on the Activities of the United Nations System in Relation to the Decade, 25 June 2004, UN Doc E/ 2004/CRP.12 at 39; Ecuador Report, supra note 134 at para 31; Contribution of the ILO, supra note 130 at para 2.

156 See Eide, AsbjørnGood Governance, Human Rights, and the Rights of Minorities and Indigenous Peoples,” in Hans-Otto Sano and Gudmundur Alfredsson, eds, Human Rights and Good Governance: Building Bridges (The Hague, London, New York: Martinus Nijhoff, 2002) 47 at61.Google Scholar

157 See Prasad, ViniyankaThe UN Declaration on the Rights of Indigenous Peoples: A Flexible Approach to Addressing the Unique Needs of Varying Populations” (2010) 9 Chicago J Int’l L 297 at 312 Google Scholar; Thornberry, supra note 11 at 351.

158 See ILO, Report of the Committee Set up to Examine the Representation Alleging non-Observance by Peru of the Indigenous and Tribal Peoples’ Convention, 1989 (no. 169), made under Article 24 of the ILO Constitution by the General Confederation of Workers of Peru (CGTP), 1998, ILO Doc /.270/16/4):GB.273/14/4) at para 32 (b), where the committee makes the following recommendation to the Governing Body: “b) to remind the Government of the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship, and that when communally owned indigenous lands are divided and assigned to individuals or third parties, this often weakens the exercise of their rights by the community or the indigenous peoples and in general they may end up losing all or most of the land, resulting in a general reduction of the resources that are available to indigenous peoples when they own their land communally” [emphasis added].

159 “The relation of an indigenous community with its land must be recognized and understood as the fundamental basis of its culture, spiritual life, integrity and economic survival. For such peoples their communal nexus with the ancestral territory is not merely a matter of possession and production, but rather consists in material and spiritual elements that must be fully integrated and enjoyed by the community, so that it may preserve its cultural legacy and pass it on to the future generation.” Case of theMoiwana Community (Suriname) (2005), Inter-Am Ct HR (Ser C) no. 124 at para 131.

160 Convention no. 169, supra note 44, Article 13(1). See Holder, Cindy L and Corntassel, Jeff JIndigenous Peoples and Multicultural Citizenship: Bridging Collective and Individual Rights” (2002) 24 Hum Rts Q 126 at 148 CrossRefGoogle Scholar; Thornberry, supra note 11 at 351.

161 Convention no. 169, supra note 44, Article 14(1). See Lustig, Doreen andKingsbury, BenedictDisplacement and Relocation from Protected Areas: International Law Perspectives on Rights, Risks and Resistance” (2006) 4 Conservation and Society 404 at 409 Google Scholar; Thornberry, supra note 11 at 352, noting that “[i]n the Convention perspective, land rights are not granted by the State, which must rec-ognize them as a matter of international obligation arising from traditional occupation.”

162 See Allen, StephenLooking beyond the Bancoult Cases: International Law and the Prospect of Resettling the Chagos Islands” (2007) 7 Hum Rts L Rev 441 at 476–77.Google Scholar

163 See Barsh, supra note 20 at 225.

164 See Venne, supra note 86 at 61; Joona, supra note 124 at 162.

165 Convention no. 169, supra note 44, Article 14(1). See Eide, AsbjørnLegal and Normative Bases for Saami Claims to Land in the Nordic Countries” (2001) 8 Int’l J on Minority & Group Rights 127 at 143.CrossRefGoogle Scholar

166 Convention no. 169, supra note 44, Article 14(1). See Manus, PeterSovereignty, Self-Determination, and Environment-Based Cultures: The Emerging Voice of Indigenous Peoples in International Law” (2005) 23 Wis Int’l LJ 553 at 595.Google Scholar

167 This issue was, however, addressed in Recommendation 104, supra note 16, albeit in the context of the integrationist approach of the late 1950s. See Gilbert, JérémieNomadic Territories: A Human Rights Approach to Nomadic Peoples’ Land Rights” (2007) 7 Hum Rts L Rev 681,Google Scholar noting that this reference to nomadic peoples is “a welcome development within international law” (at 695–96) and in this regard the convention “stands as the leading treaty on the issue” (at 697).

168 Convention no. 169, supra note 44, Article 14(2). See Xanthaki, AlexandraLand Rights of Indigenous Peoples in South-East Asia” (2003) 4 Melbourne J Int’l L 467 at 477 Google Scholar; Rodríguez-Piñero, supra note 117 at 324.

169 UNDRIP, supra note 128. See Gilbert, JérémieIndigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples” (2007) 14 Int’l J on Minority & Group Rights 207 at 226 CrossRefGoogle Scholar, noting that “[t]he Declaration remains vague by affirming that ’states shall give legal recognition and protection to these lands, territories and resources’ but does not provide for a clear obligation to demarcate indigenous lands.”

170 Convention no. 169, supra note 44, Article 14(2). See Yukich, Kelley CAboriginal Rights in the Constitution and International Law” (1996) 30 UBCL Rev 235 at 253.Google Scholar

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172 Convention no. 169, supra note 44, Article 14(3). See Koivurova, TimoJurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects” (2011) 18 Int’l J on Minority & Group Rights 1 at 21.Google Scholar

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174 Convention no. 169, supra note 44, Article 17(2). See Engle, Karen The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Durham, NC: Duke University Press, 2010) at 178,Google Scholar noting sarcastically that one should read “if ever"” instead of “whenever.”

175 Convention no. 169, supra note 44, Article 17(3). See Bravo, Karen EBalancing Indigenous Rights to Land and the Demands of Economic Development: Lessons from the United States and Australia” (1997) 30 Col JL & Soc Probs 529 at 537–38.Google Scholar

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177 Convention no. 169, supra note 44, Article 15(2). See Triggs, GillianAustralia’s Indigenous Peoples and International Law: Validity of the Native Title Amendment Act 1998 (CTH)” (1999) 23 Melbourne UL Rev 372 at 389 Google Scholar; Thornberry, supra note 11 at 356.

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180 Venne, supra note 86 at 62.

181 Ulfstein, supra note 119 at 27; see also Swepston, supra note 47 at 704.

182 UNDRIP, supra note 128. See Tramontana, EnzamariaThe Contribution of the Inter-American Human Rights Bodies to Evolving International Law on Indigenous Rights over Lands and Natural Resources” (2010) 17 Int’l J on Minority & Group Rights 241 at 247.CrossRefGoogle Scholar

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186 Convention no. 169, supra note 44, Article 16(2) [emphasis added]. See Cohen, Roberta and Deng, Francis M Masses in Flight: The Global Crisis of Internal Displacement (Washington, DC: Brookings Institution Press, 1998) at 91.Google Scholar

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188 Convention no. 169, supra note 44, Article 16(4). See Sturgeon, LeslieConstructive Sovereignty for Indigenous Peoples” (2005) 6 Chicago J Int’l L 455 at 457.Google Scholar

189 Convention no. 169, supra note 44, Article 16(4).

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192 Ibid.

193 Ibid.

194 Barsh, supra note 20 at 227.

195 Swepston, supra note 47 at 706.

196 Lenzerini, FedericoSovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples” (2006) 42 Tex Int’l LJ 155 at 179.Google Scholar

197 Swepston, supra note 47 at 697–98.

198 American Convention on Human Rights, 22 November 1969, OASTS no. 36 (entered into force 18 July 1978) [ACHR].

199 “Thus, the ‘indigenisation’ of the general right to property was based on more specific instruments on the rights of indigenous peoples. From this perspective, the Inter-American Court’s progressive approach seems to indicate that the most positive development regarding the content of human rights discourse in relation to indigenous peoples comes from the ILO Convention 169 and the UN and OAS Declarations.” Gilbert, supra note 169 at 211. See also Fitzmaurice, MalgosiaThe New Developments Regarding the Saami People of the North” (2009) 16 Int’l J Minority & Group Rights 67 at 6970.Google Scholar See further discussion of these developments below, text accompanying notes 253–71.

200 See Barsh, supra note 20 at 213, 234.

201 See Alfredsson, Gudmundur and Ferrer, Erika Minority Rights: A Guide to United Nations Procedures and Institutions (London: Minority Rights Group International, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, 1998) at 15.Google Scholar

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203 Convention no. 169, supra note 44, Article 27(1) [emphasis added]. See Kastrup, Jose PauloThe Internationalization of Indigenous Rights from the En-vironmental and Human Rights Perspective” (1997) 32 Tex Int’l LJ 97 at 115 Google Scholar; Thornberry, supra note 11 at 362, observing that “[t]he provision represents the most demanding requirement for an indigenous or minority-sensitive educational programme generated by an international treaty.”

204 Convention no. 169, supra note 44, Article 27(2) [emphasis added]. See ILO, ILO Convention on Indigenous and Tribal Peoples, 1989 (no.169): A Manual, revised edition (Geneva: ILO, 2003) at 12, where it is noted that “the transfer of responsibility should take place only when indigenous and tribal peoples decide it is the right time for them to assume management and control of these issues. However once this is done, governments cannot simply walk away and avoid any further responsibility. They have to maintain an overview of the activities to make sure that they are running smoothly, and that they are properly financed.” Thornberry notes that “there is no properly comparable provision in other international instruments.” Thornberry, supra note 11 at 363.

205 Convention no. 169, supra note 44, Article 27(3) [emphasis added]. See Den Vosch, Marian Van and Genugtenq, Willem VanInternational Legal Protection of Migrant Workers, National Minorities and Indigenous Peoples — Comparing Underlying Concepts” (2002) 9 Int’l J on Minority & Group Rights 195 at 216.CrossRefGoogle Scholar

206 Strelein, supra note 107 at 72. Thornberry argues that this provision “contrasts vividly with the bleak negation of any State financial responsibility for such institutions in the FCNM [Framework Convention for the Protection of National Minorities, 10 November 1994, ETS no. 157] and the more guarded freedom to seek public contributions in the OSCE Copenhagen Document.” Thornberry, supra note 11 at 363. See also Barsh, supra note 20 at 230, observing that “in any event, states would bear fiscal responsibility for language education.”

207 Convention no. 169, supra note 44, Article 28(1) [emphasis added]. See UNESCO, Education in a Multilingual World: UNESCO Education Position Paper (Paris: UNESCO, 2003) at 23; Thornberry, supra note 11 at 363.

208 See de Varennes, Fernand Languages, Minorities and Human Rights (The Hague: Martinus Nijhoff, 1996) at 266.Google Scholar

209 Ibid.

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254 ACHR, supra note 198, Article 21; American Declaration of the Rights and Duties of Man, OAS Res XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, Doc OEA/Ser.L/V/II.82/doc.6 rev.1 at 17 (1992), Article 23 [American Declaration]. See Mello, Mario, “Recent Advances in the Justiciability of Indigenous Rights in the Inter-American System of Human Rights” (2006) 4 Sur-Int’l J Human Rights 31 at 35.Google Scholar

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258 Yakye Axa case, supra note 255 at paras 95–96.

259 Ibid at para 127.

260 Ibid at para 130. See also Góngora-Mera, Manuel Eduardo Inter-American Judicial Constitutionalism: On the Constitutional Rank of Human Rights Treaties in Latin America Through National and Inter-American Adjudication (San José, Costa Rica: Inter-American Institute of Human Rights, 2011) at 224.Google Scholar

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263 Ibid at paras 150-51. See also Inter-American Commission of Human Rights, Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, 30 December 2009, Doc OEA/Ser.L/V/II/doc.56 (2009) at para 147.

264 See Ching-Soto, Lilly GReparations in the Inter-American System of Human Rights: An Analysis of the Jurisprudence on Collective Cases of Indigenous Peoples and the Economic, Social and Cultural Aspects of Their Reparations” (2010) 10 Revista do Instituto Brasileiro des Direitos Humanos 219 at 223–24.Google Scholar

265 ACHR, supra note 198, Articles 1(1), 2, 4, 5, 8, 21, 25.

266 Case of the Sawhoyamaxa Indigenous Community (Paraguay) (2006), Inter-Am Ct HR (Series C) no. 146 [Sawhoyamaxa case]. See Raisz, AnikóIndigenous Communities before the Inter-American Court of Human Rights: New Century, New Era?” (2008) 5 Miskolc J Int’l L 35 at 46.Google Scholar

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270 Ibid at paras 119-120. See also De Schutter, OlivierThe Green Rush: The Global Race for Farmland and the Rights of Land Users” (2011) 52 Harv Int’l LJ (2011) 503 at 536, n 129.Google Scholar

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273 Alejandro Papic Domínguez Con Comunidad Indigena Aymara Chusmiza v Usmagama, no. 2840-2008, 25 November 2008 (Supreme Court of Chile).

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277 Ibid.

278 General Forestry Act, Act 1021 of 2006 (Colombia).

279 Decision C-030/08, 23 January 2008, Case File D-6837 (Constitutional Court of Colombia).

280 The “Constitutional Block” doctrine holds that human rights conventions ratified by the ColombianState are part of the Constitution and should be used to determine the constitutionality of lower-ranking acts or laws. According to this doctrine, Convention no. 169 has, in Colombia, a constitutional status and is obligatory for legislators, administrative officers, and judges. See Suárez Franco, Ana MaríaUnconstitutionality Declaration of the Forestry Law in Colom-bia” (2008) 3 Right to Food Quarterly 10 at 10.Google Scholar

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283 Crawford, ColinEnvironmental Benefits and the Notion of Positive Environmental Justice” (2011) 32 U Pennsylvania J Intl L 3911 at 927.Google Scholar

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294 See Genugten, Willem vanProtection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems” (2010) 104 AJIL 29 at 52.CrossRefGoogle Scholar

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297 Lemeiguran v Attorney General, [2008] 3 Kenya LR 325 [Lemeiguran].

298 See Kenya National Commission on Human Rights, Submission to the Committee on the Elimination of Racial Discrimination in Response to the Periodic Report of Kenya (June 2011) at 13, online: <http://www2.ohchr.org/english/bodies/cerd/docs/ngos/KNCHR_Kenya_CERD79.pdf>.

299 See Lemeiguran, supra note 297 at 325–26, 344.

300 UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Third Periodic Report of States Parties: Kenya, UN Doc CCPR/C/KEN/3 (13 January 2011) at para 203.

301 Lemeiguran, supra note 297 at 365–66.

302 Ibid at 367. See also International Labour Organization and African Commission on Human and Peoples’ Rights, Kenya: Constitutional, Legislative and Administrative Provisions Concerning Indigenous Peoples (Geneva: International Labour Office, 2009) at 26.

303 Lemeiguran, supra note 297 at 386–87.

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305 “The cross-sectoral Strategy on Cooperation with Indigenous Peoples in Latin America and the Caribbean is a binding guideline adopted by the Federal Ministry for Economic Cooperation and Development (BMZ) for the formulation of development co-operation (DC) in Latin America and the Caribbean by official bilateral implementing agencies … Its principles are derived directly from the provisions of ILO Convention (no. 169) Concerning Indigenous and Tribal Peoples in Independent Countries.” Federal Ministry for Economic Cooperation and Development (Germany), Development Education and In-formation Division, “Development Cooperation with Indigenous Peoples in Latin America and the Caribbean (Strategies 141)” (2006) at 4, online: <http:// www.bmz.de/en/publications/type_of_publication/strategies/konzept141.pdf>.

306 See Valenta, LisaDisconnect: The 1998 Brazilian Constitution, Customary International Law, and Indigenous Land Rights in Northern Brazil” (2003) 38 Tex Int’l LJ 643 at 659.Google Scholar See also Oguamanam, ChidiIndigenous Peoples and International Law: The Making of a Regime” (2004) 30 Queen’s LJ 348 at 364 Google Scholar; Rodríguez-Piñero, supra note 117 at 328, noting that “Convention 169 is now widely regarded as an important foundation of indigenous peoples’ rights in international law, and most indigenous organizations now actively promote the ratification of the convention.”

307 Heintze, supra note 9 at 310. As Thornberry also notes, “[t]he ILO can claim much of the credit for bringing rights of indigenous peoples — as such, and not as derivatives of other rights or applications of them — into the forefront of contemporary discussion.” Thornberry, supra note 11 at 320.

308 See Xanthaki, AlexandraIndigenous Rights in International Law over the Last Ten Years and Future Developments” (2009) 10 Melbourne J Int’l L 27 at 29.Google Scholar

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