¹ Swepston, Lee “ILO Standards and Globalization,” in Roger Blanpain, ed, Confronting Globalization: The (Quest for a Social Agenda — Geneva Lectures (The Hague: Kluwer Law International, 2005) 11 at 11.Google Scholar The original ILO Constitution was incorporated as Part XIII of the Treaty of Peace between the Allied and Associated Powers and Germany, 28 June 1919, Articles 387-427, online: <http://www.ilo.org/public/english/bureau/leg/download/pArticlexiii-treaty.pdf> [Treaty of Versailles].

² See Zarka-Martres, Monique and Guichard-Kelly, Monique “Decent Work, Standards and Indicators,” in Kucera, David ed, Qualitative Indicators of Labour Standards: Comparative Methods and Applications (Dordrecht: Springer, 2007) 83 at 83.CrossRefGoogle Scholar

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⁴ Osieke, Ebere Constitutional Law and Practice in the International Labour Organization (Dordrecht: Martinus Nijhoff, 1985) at 52.Google Scholar

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¹² See Tennant, Chris “Indigenous Peoples, International Institutions and the International Legal Literature from 1945-1993” (1994) 16 Hum Rts Q 1 at 27–28.Google Scholar

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¹⁵ Convention no. 107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 26 June 1957, online: <http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO.:: P12100_ILO_CODE:C107> [Convention no. 107].

¹⁶ See ILO, Recommendation Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 26 June 1957, online: <http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO.::P12100_ ILO_CODE:R104> [Recommendation 104].

¹⁷ Hitchcock, Robert K “International Human Rights, the Environment and Indigenous Peoples” (1994) 5 Colo J Int’l Envtl L and Pol’y 1 at 9.Google Scholar

¹⁸ Convention no. 107, supra note 15, Articles 1-27. See Gudmundur Alfredsson, “International Law, International Organizations, and Indigenous Peoples” (1982) 36 J Int’l Affairs 113 at 120; Thornberry, supra note 11 at 327.

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 W “International 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, Russel “An 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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²² Convention no. 107, supra note 15, Article 2(2)(c). See Behura, NK “ILO Convention: Indigenous and Tribal Peoples — An Analysis,” in Nath Pati, Rabindra and Dash, Jagannatha eds, Tribal and Indigenous People of India: Problems and Prospects (New Delhi: APH Publishers, 2002) 29 at 30.Google Scholar

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³¹ Ibid, Articles 3(1), 15(1), 17(1).

³² Ibid, Articles 3(2)(a)-(b), 17(3). See Brownlie, Ian Treaties and Indigenous Peoples, edited by FM Brookfield (Oxford: Clarendon Press, 1992) at 64–65;Google Scholar Thornberry, Patrick International Law and the Rights of Minorities (Oxford: Clarendon Press, 1992) at 343–44;Google Scholar Lawrence Barsh, Russel “Indigenous North America and Contemporary International Law” (1983) 62 Or L Rev 73 at 82.Google Scholar

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⁴⁴ Convention no. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 28 ILM 1382, online: <http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO.::P12100_ILO_CODE:C169> [Convention no. 169]. See Fodella, Alessandro “International Law and the Diversity of Indigenous Peoples” (2006) 30 Vt L Rev 565 at 585.Google Scholar Convention no. 107 was ratified by twenty-seven states and continues to be in force for seventeen of them (namely Angola, Bangladesh, Belgium, Cuba, the Dominican Republic, Egypt, El Salvador, Ghana, Guinea-Bissau, Haiti, India, Iraq, Malawi, Pakistan, Panama, Syria, and Tunisia). Of the remaining ten, nine (namely Argentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, Mexico, Paraguay, and Peru) adhered to Convention no. 169 while Portugal denounced Convention no. 107 without subscribing (at the time of writing) to its successor. See ILO, “Ratifications of C107 – Indigenous and Tribal Populations Convention, 1957 (no. 107),” online: <http://www.ilo. org/dyn/normlex/en/f?p=NO.RMLEXPUB:11300:0::NO.:11300:P11300_INSTRUMENT_ID:312252:NO.>.

⁴⁵ “Although directed integration of the kind contemplated by Convention 107 was viewed as progressive in the 1940s and 50s, in the context of indigenous peoples it is readily apparent that state programmes of this nature have had ethnocidal consequences.” Berman, Howard R “The International Labour Organization and Indigenous Peoples: Revision of ILO Convention no. 107 at the 75th Session of the International Labour Conference, 1988” (1988) 41 Int’l Comm Jur Rev 48 at 49.Google Scholar

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⁵⁸ See Morris, Glenn T “International Law and Politics: Toward a Right to Self-Determination for Indigenous Peoples,” in Jaimes, M Annette ed, The State of Native America: Genocide, Colonization, and Resistance (Boston: South End Press, 1992) 55 at 76.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.

⁷¹ See Wiessner, Siegfried “Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis” (1999) 12 Harv Hum Rts J 57 at 100.Google Scholar

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⁹⁰ Convention no. 169, supra note 44, Article 10(1).

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¹⁰⁵ Convention no. 169, supra note 44, Article 8(2). See Venne, supra note 86 at 60, arguing that: “[i]f the bases for legal systems are rooted in two different needs and concerns there is very little compatibility.”

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

¹⁰⁷ Strelein, Lisa “The Price of Compromise: Should Australia Ratify ILO Convention 169?” in Bird, Creta Martin, Gary and Nielsen, Jennifer eds, Majah: Indigenous Peoples and the Law (Leichhardt: Federation Press, 1996) 63 at 85.Google Scholar

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¹¹³ Jackson, Moana “The 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

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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, Serv “The 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, Gudmundur “Human 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, Geir “Indigenous Peoples’ Right to Land” (2004) 8 Max Planck YB of UN L 1 at 12.CrossRefGoogle Scholar

¹²⁰ See Moses, Ted “Renewal 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, Andrew “Indigenous 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, Patrick “Apposition 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.CrossRefGoogle 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, Tanja “ILO 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, James “Indigenous 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 James “Indian 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, Yvonne “The 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, Mattias “The 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, Timo “Sovereign 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 J “Indigenous 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, Gudmundur “Indigenous 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, Alexandra “Indigenous 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, Saeko “The Right to Effective Participation and the Ainu People” (2004) 11 Int’l J on Minority & Group Rights 21 at 28–29.Google Scholar

¹³² Xanthaki, Alexandra “Indigenous Rights in the Russian Federation: The Case of Numerically Small Peoples of the Russian North, Siberia, and Far East” (2004) 26 Hum Rts Q 26 74 at 85.CrossRefGoogle Scholar

¹³³ Convention no. 169, supra note 44, Article 6(1)(a). See Marks, Greg “Avoiding 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, Lee “The 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, Mauro “Free, 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, Leena “Protecting 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, Annika “The 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, Sarah “Native 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, Dinah “Human 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, Kristian “The Right of Indigenous Peoples to Participate in Development Projects” (2002) 8 Human Rights & Development YB 225 at 245.CrossRefGoogle Scholar

¹⁴⁹ Convention no. 169, supra note 44, Article 7(1). See Thornberry, Patrick “Minority and Indigenous Rights at ’the End of History’” (2002) 2 Ethnicities 515 at 526 CrossRefGoogle Scholar; Alfredsson, Gudmundur “Minimum Requirements for a New Nordic Sami Convention” (1999) 68 Nordic J Int’l L 397 at 405.CrossRefGoogle Scholar

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

¹⁵¹ Convention no. 169, supra note 44, Article 7(3) [emphasis added]. See Metcalf, Cherie “Indigenous Rights and the Environment: Evolving International Law” (2003–04) 35 Ottawa L Rev 101 at 112.Google Scholar

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, Helen “The 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, Asbjørn “Good 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, Viniyanka “The 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 J “Indigenous 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, Benedict “Displacement 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, Stephen “Looking 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, Asbjørn “Legal 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, Peter “Sovereignty, 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, Jérémie “Nomadic 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, Alexandra “Land 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, Jérémie “Indigenous 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 C “Aboriginal Rights in the Constitution and International Law” (1996) 30 UBCL Rev 235 at 253.Google Scholar

¹⁷¹ Convention no. 169, supra note 44, Article 18. See Spiry, Emmanuel “From ‘Self-Determination’ to a Right to ‘Self-Development’ for Indigenous Groups” (1995) 38 German YB Int’l L 129 at 149 Google Scholar; Rodríguez-Piñero, supra note 117 at 324.

¹⁷² Convention no. 169, supra note 44, Article 14(3). See Koivurova, Timo “Jurisprudence 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

¹⁷³ See Anaya, S James “The Native Hawaiian People and International Human Rights Law: Toward a Remedy for Past and Continuing Wrongs” (1994) 28 Ga L Rev 309 at 348,Google Scholar observing that the use in Article 14(1) of the wording “traditionally occupy” in the present tense, and the deliberate rejection of the past tense, implies that there needs to be a link in the present time between the people concerned and their lands in order for the latter to be covered by this provision. In his view, it is possible for the mechanisms called for in Article 14(3) to be applied to traditionally occupied indigenous lands of which the traditional occupants were arbitrarily deprived in the past. See also Thornberry, supra note 11 at 358.

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 E “Balancing 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

¹⁷⁶ Convention no. 169, supra note 44, Article 15(1). See Lindqvist, Johanna “Reindeer Herding: A Traditional Indigenous Livelihood” (2009) 6 Macq J Int’l & C Envtl L 83 at 100–1Google Scholar; Thornberry, supra note 11 at 356.

¹⁷⁷ Convention no. 169, supra note 44, Article 15(2). See Triggs, Gillian “Australia’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.

¹⁷⁸ Convention no. 169, supra note 44, Article 15(2) [emphasis added]. See Ferch, Michael L “Indian Land Rights: An International Approach to Just Compensation” (1992) 2 Transnat’l L & Contemp Probs 301 at 323.Google Scholar

¹⁷⁹ Anaya, S James “Indigenous Peoples’ Participatory Rights in Relation to Decisions about Natural Resources Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Lands and Resources” (2005) 22 Ariz J Int’l & Comp L 7 at 10.Google Scholar See also Stamatopoulou, Elsa “Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic” (1994) 16 Hum Rts Q 58 at 74 CrossRefGoogle Scholar; Huff, supra note 120 at 305, noting that “[w]hile Article 15 requires a framework of consultation and, if possible, participation and compensation, signatory States clearly retain ultimate authority over the disposition of resources within indigenous territories.”

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, Enzamaria “The 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

¹⁸³ Anaya, S James “International Human Rights and Indigenous Peoples: The Move toward the Multicultural State” (2004) 21 Ariz J Int’l & Comp L 13 at 39.Google Scholar

¹⁸⁴ Convention no. 169, supra note 44, Article 16(1). See Lerner, Natan Group Rights and Discrimination in International Law, 2nd edition (The Hague: Martinus Nij-hoff, 2003) at 120.CrossRefGoogle Scholar

¹⁸⁵ Convention no. 169, supra note 44, Article 16(2). See Swepston, Lee and Tomei, Manuela “The International Labour Organization and Convention 169,” in Lydia van de Fliert, ed, Indigenous Peoples and International Organizations (Nottingham, UK: Spokesman Books, 1994) 56 at 59.Google Scholar See also Swepston, supra note 47 at 705, 707, noting that the representatives of indigenous peoples during the negotiations asked that their consent constitute an absolute precondition for relocation away from their lands, a demand, however, that was rejected on the grounds that there were cases where relocation was imperative (eg, because of some natural disaster, epidemic, and so on) regardless of the will or consent of the people concerned.

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

¹⁸⁷ Convention no. 169, supra note 44, Article 16(3) [emphasis added]. See Asiema, Joy K and Situma, Francis DP “Indigenous Peoples and the Environment: The Case of the Pastoral Maasai of Kenya” (1994) 5 Colo J Int’l Envtl L & Pol’y 149 at 152.Google Scholar

¹⁸⁸ Convention no. 169, supra note 44, Article 16(4). See Sturgeon, Leslie “Constructive 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).

¹⁹⁰ Ibid, Article 16(5). See Baluarte, David C “Balancing Indigenous Rights and a State’s Right to Develop in Latin America: The Inter-American Rights Regime and ILO Convention 169” (2004) 4 Sustainable Development L & Pol’y 9 at 11.Google Scholar

¹⁹¹ Venne, supra note 86 at 63.

¹⁹² Ibid.

¹⁹³ Ibid.

¹⁹⁴ Barsh, supra note 20 at 227.

¹⁹⁵ Swepston, supra note 47 at 706.

¹⁹⁶ Lenzerini, Federico “Sovereignty 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, Malgosia “The New Developments Regarding the Saami People of the North” (2009) 16 Int’l J Minority & Group Rights 67 at 69–70.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

²⁰² Convention no. 169, supra note 44, Article 26 [emphasis added]. See Beiter, Klaus Dieter The Protection of the Right to Education by International Law (Leiden: Martinus Nijhoff, 2006) at 310 CrossRefGoogle Scholar; Thornberry, supra note 11 at 361–62.

²⁰³ Convention no. 169, supra note 44, Article 27(1) [emphasis added]. See Kastrup, Jose Paulo “The 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 Van “International 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.Google Scholar

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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.

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²³¹ Hurst Hannum, “Human Rights” in Joyner, supra note 54, 131 at 149.

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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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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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²⁶⁴ See Ching-Soto, Lilly G “Reparations 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

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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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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 María “Unconstitutionality Declaration of the Forestry Law in Colom-bia” (2008) 3 Right to Food Quarterly 10 at 10.Google Scholar

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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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³⁰⁶ See Valenta, Lisa “Disconnect: 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, Chidi “Indigenous 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.

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