Centre for Legal Pluralism and Indigenous Law, Faculty of Law INDIGENOUS PEOPLES’ ISSUES OF DEFINITION: A BRIEF LOOK AT INTERNATIONAL DEVELOPMENTS Dr Ramy Bulan Research Fellow Centre for Legal Pluralism and Indigenous Law, Faculty of Law University of Malaya

OUTLINE “Indigenous peoples” and other terms Development in international law- Roots in post WWII The Issue Over Time – ILO 107/169 – 1960s/70s/80s Current Approaches to Definition Self Identification / Self Ascription for inclusion and exclusion What does adding a definition contribute? Summary: Features of indigenous peoples

Indigenous Peoples Indigenous peoples have become a focus of international attention What’s in a name? Indigenous/ First Nations/Natives/Tribes (Cultural minorities) Minority Nationalities

The Issue Over Time ILO convention 107 of 1957 – both “indigenous” and “tribal” ILO 169 (1989) – independent definition of indigenous peoples UN Declaration on the Rights of Indigenous Peoples 2007, eg. Article 26- lands, customs, traditions The World Bank 2005/2013

Issues Over Time ILO 169 (1989) Independent definition of indigenous peoples Descent from populations who inhabited the country, geographical region, at the time of conquest or colonization or establishment of present boundary, retain own social, economic, cultural and political institutions 1960s International Organisations-2 leading NGOs (a) Survival International (London) (b) IWGIA- International Workgroup on Indigenous Peoples (Copenhagen) 1970s Indigenous Organisations (c) World Council of Indigenous Peoples (1970s) (d) International Indian Treaty Council (Canada and USA)

World Bank Directive 1991 Operational Directive 4.20 Indigenous peoples –in particular geographical area with these characteristics: (a)Close attachment to ancestral territories and to natural resources in these area; and indigenous language; (b) presence of customary , social and political institituions; and’ (c) Primarily subsistence –oriented production; Task managers must exercise judgment in determining the populations to which the directive applied - & shd make us of specialized anthropological and sociological experts through out the project cycle. This also allowed special Indigenous Peoples Development Plan Note: Some Countries did not like the World Bank’s use of the term Indigenous peoples eg Africa, parts of Asia

World Bank 2005/2013, Operation Policy para 4.10 Wide definition- “a distinct’ vulnerable, social and cultural group” Lists Four criteria that must be satisfied in varying degree; Self identification, ancestral territory, customary territory cultural, economic, social and political institutions differing from majority, and an indigenous language

Current Approaches to Definition Martinez Cobo’s Definition; Prof Erica-Irene Daes; Prof Benedict Kingsbury : Essential Requirements and Relevant Indicia

A Working Definition R. Martinez Cobo Study on the Problem of Discrimination Against Indigenous Populations (1972) Reported in (1983) Para 379-380, 381 Historical Continuity – may consist of one or more of the following factors: Occupation of ancestral lands , or at least of part of them; B. Common ancestry with the original occupations of these lands; Culture in general or in specific manifestations Language Residence in certain parts of the country, or certain regions of the world Other factors: (i) An individual to these indigenous populations through self identification and (ii) acceptance by the group

Comment on Martinez Cobo’s definition Could be seen as Under inclusive: 1. Presupposes historical event of suffering invasion or colonisation- mandatory link to that event – limits the concept to the Americas and Oceania – leaving out other in Africa and Asia that are oppressed equally by original inhabitants “ of neighboring lands. 2. Necessary determination to “preserve ancestral territories” – could be used exclude peoples forcibly or non-forcibly removed from their lands eg. those who now reside in urban areas 3. “Non-dominant sectors of society”- though the common experience- this could exclude groups that have recently achieved preeminence in a nation state

Erica- Irene Daes – former Chair of WGIP Counsels against a formal definition Offers a set of “relevant factors”: Priority in time with respect to the occupation and use of a specific territory; [ Note: narrow, empirically framed] Voluntary perpetuation of cultural distinctiveness* Self-identification, as well as recognized by other groups or State authorities as a distinct collectivity* An experience of subjugation, marginalization, dispossession, exclusion, discrimination* Comment*- Makes sense- but should apply whether they are presently able to reside in the territories or not

Benedict Kingsbury 1998: Proposed a “Flexible Constructive Approach to the Asian Controversy” -did not want the strict historical test (a) Essential Requirements Self-identification as a distinct ethnic group Historical experience of, or contingents vulnerability to, sever disruption, dislocation, exploitation Long connection with the region The wish to retain a distinct identity (b) Relevant indicia

Kingsbury: Relevant indicia Strong Indicia Non-dominance in the national (or regional) society (ordinarily required) Close cultural affinity with a particular area of land or territories (ordinarily required0historical continuity (esp by descent with prior occupants 2. Other relevant Indicia Socio economic and socio-cultural difference from the ambient population Distinct objective characteristics such as language, race, and material or spiritual culture Regarded as indigenous by ambient population or treated as such in legal and administrative arrangements.

UN Declaration on the Rights of Indigenous Peoples Does not include a definition of the subject groups –a flaw in the declaration? Nonetheless, through its preambles and various operative provisions UNDRIP makes clear the basic characteristics of the groups to which it is directed and are common to them. Repeated calls to states to address theses issues on the basis of articulated standards More of description of groups in practical rather than definition

Self Identification/Ascription Self Identification for inclusion and exclusion Working Group on Indigenous Peoples 1982 – .Self identification accepted in practice . WGIP allowed participation of any indigenous person or representative of community or organisation. Voluntary Fund for Indigenous Peoples – established by the General Assembly to facilitate attendance of indigenous delegations Declaration on the Rights of Indigenous Peoples see Art 3 – on self determination

Self Identification and Exclusion Need for (a) self –identification and (b) Acceptance of the group. Examples from Canada - “Marry Out, Stay Out Sandra Love Lace v Government of Canada Brought case to Human Rights Committee. The CCPR – held that absence for a few years did not sever her indigenous rights under Canadian law. Case of Waneek Horn Miller v Mohawk Kahnawake Council -

Case of Waneek Horn Miller v Mohawk Kahnawake Council – An Olympian champion married a non native- was asked to leave the reservation Mohawks seek to remove non-natives from Kahnawake lands (just outside Montreal) More than 100 people and families forced to leave the Mohawk community Causes fear/ division/ damaging people’s spirits

Historical Proof of Descent and Blood Quantum Mohawk Elder: “Marry out, Stay Out” is not about excluding non-native people, but rather it is about preserving Mohawk lineage. To preserve who we areas a people. The land is ours- whites can live anywhere.”

Blood Quantum and Entitlement The case of Joseph Boyden (2017) Celebrated as one of Canada’s finest indigenous voices – “may not be indigenous after all”. His claim to indigenous ancestry: (Mixed blood on both his parents’ side) father of mixed blood, Mother, Anashinabe married a Scottish. : Received an award as an indigenous writer- Questions: How legitimate was it for him to accept awards set aside for indigenous authors (with real experience of life obstacles) ? Readers would probably read his writing differently if they thought he was non native? (I once said that a small part of me is indigenous but it is a huge part of who I am “

Conclusion Differing Approaches Continue Open-ended language of the World Bank, Focus on attachment to land plus vulnerability, to Historical Descent Lack of consensus on definition does not obscure the problem The debate is not theoretical. It poses real and basic questions about human diversity and cultural survival. The question is : how does adding a definition contribute in the aggregate, to public order of human dignity?