(Final report of study on treaties, agreements and other constructive arrangements between States and indigenous populations)

CHAPTER 1: SOME KEY POINTS OF DEPARTURE

37. Given the vast geographical, temporal and juridical scope of the Study (Document E/CN.4/Sub.2/1991/33, paras. 92-93, 106-107, and 110- 114.), the Special Rapporteur decided from the start to confine detailed analysis to a limited, representative number of case studies ordered according to five juridical situations: 1) treaties concluded between States and Indigenous peoples; 2) agreements made between States or other entities and Indigenous peoples; 3) other constructive arrangements arrived at with the participation of the Indigenous peoples concerned; 4) treaties concluded between States containing provisions affecting Indigenous peoples as third parties; and 5) situations involving Indigenous peoples who are not parties to, or the subject of any of the above-mentioned instruments. (E/CN.4/Sub.2/1992/32, Para. 169.)

38. It must be recalled that from the geographical viewpoint, the Special Rapporteur has viewed his mandate as universal, dealing with "any part of the world to which the historical or contemporary existence of treaties, agreements and other constructive arrangements is confirmed, or where they may still come into being to the future through a process of negotiation and cooperation." (E/CN.4/Sub.2/1988/24, Add. 1, para. 12; E/CN.4/Sub.2/1991/33, para. 92.)

39. Consequently, an extensive array of cases from all regions of the world was examined, related to all the five different juridical situations listed above; including cases in the United States and Canada (Haudenosaunee, Mikmaq, the so-called Five Civilized Tribes, Shoshone, Lakota, the Indigenous signatories of Treaty No. Six, the James Bay Cree [of Quebec], the Indigenous nations of British Columbia and California, the Lubicon Cree), the Pacific (Maaori, Hawaii, French Polynesia) , Latin America (Kuna Yala, Mapuche, Yanomami, Maya) , Aborigines and Islanders of Australia, the Greenland Home Rule, and some African and Asian cases (Burma/Myanmar, the role of European charter companies in South Asia and West Africa, the San of Botswana, the Ainu of Japan, and the Indigenous peoples of Siberia)

40. It is worth recalling in this connection that some choices were made by the Special Rapporteur concerning the guidelines adopted for the research as a whole. (E/CN.4/Sub.2/1991/33, paras. 95-100; for implementation, see E/CN.4/Sub.2/1995/27, paras. 48-129. It must be mentioned that the language barrier made it impossible for the Special Rapporteur to review the scanty information available to him in the case of the Indigenous peoples of Siberia.) Those guidelines have been duly taken into account throughout his work.

41. In the course of his work and in light of the numerous cases/situations reviewed, the Special Rapporteur was led to reconsider the relevance for the Final Report of the five juridical categories listed at the beginning of this Chapter

42. Two of those juridical situations --namely agreements, insofar as these may differ fundamentally from treaties, and treaties between non-indigenous powers affecting Indigenous peoples as third parties, will have limited impact on the Conclusions and Recommendations to be formulated in the present Final Report.

43. Regarding, first of all, the question of agreements, the Special Rapporteur has already stressed the need for a casuistic approach, since "the decision of the parties to a legal instrument to designate it as an 'agreement' does not necessarily mean that its legal nature differs in any way from those formally denominated as 'treaties' (E/CN.4/Sub.2/1992/32, para. 325.) This reasoning is consistent with the legal tradition codified into contemporary international law by the Vienna Convention on the Law of Treaties. (1155 United Nations Treaty Series ( UNTS) , 331, Article 2-1. (a))

44. He therefore selected certain factors to be taken into account in determining which of the instruments analyzed should be viewed as "treaty," and which was to be considered an "agreement." These factors include. who are the parties to the instrument, the circumstances surrounding its conclusion, and its subject matter. (E/CN.4/Sub.2/1992/32, para. 332.)

45. The factors in question were applied in the analysis of two particular instruments, viz. the Panglong Agreement of 12 February 1947 (Burma/Myanmar) later forgone by the State party; (E/CN.4/Sub.2/1995/27, paras. 288, 293.) and the agreement of 22 August 1788 between Captain Taylor on behalf of the British Crown and the Chiefs of Sierra Leone, which does not constitute an instrument of international law as relevant to the study. (E/CN.4/Sub.2/1995/27, para. 314.)

46. Some elements related to other present-day cases or situations labeled as agreements" --particularly in the Canadian context-- will be reviewed later on in this Report (see Chapter II).

47. Secondly, regarding the relevance, for this Study, of bilateral and multilateral treaties binding non-indigenous powers but affecting Indigenous peoples as third parties, it should be stressed that lack of time and resources have prevented the Special Rapporteur from ascertaining in situ the practical import of those instruments for indigenous peoples and from further examining the existing documentation on said instruments.

48. Nonetheless, clearly at least one instrument already considered in the first progress report (E/CN.4/Sub.2/1992/32, paras. 367-370.) continues to be relevant, namely the so-called Lapp codicil of the 1751 border treaty between Sweden/Finland and Norway/Denmark. This codicil has never been abrogated and continues to be the object of legal interpretation regarding Saami rights within the context of bilateral (Sweden/Norway) negotiations.

49. In this connection, it is worth underscoring the role of the Saami parliaments both in Norway and Sweden --but especially in Norway where it seems to have a stronger impact than in Sweden-- and their potential contribution to the interpretation of the codicil.

50. In addition, regarding specifically ILO Convention 169 (1989), it remains to be seen to what extent Indigenous peoples have any direct access to (or possible effective input into) the processes leading to the ratification of this Convention by the States in which they live, only a very limited number of which have actually ratified said instrument.

51. Although support for the Convention has been expressed by a number of Indigenous organizations (e.g., the Inuit Circumpolar Conference, the National Indian Youth Council, and the Saami Council), that support is far from being unanimous. The opposition to it by a number of Indigenous organizations in the Canadian context is proof of the above. In Canada, for instance, not all Indigenous peoples --nor certain sectors of the legal establishment-- support said ratification, since the provisions of that Convention appear to lag behind current national standards. In other countries, where existing legislation regarding Indigenous peoples --or the Indigenous labor force, for that matter-- is less advanced, Indigenous peoples may take a different stand. Yet again, a case-by-case approach is called for.

52. It follows that the issue of treaties affecting Indigenous peoples as third parties may continue to be relevant insofar as they remain in force and that Indigenous peoples already have --or may have in the future-- a participation in the implementation of their provisions. Among the ten instruments previously considered for analysis, (These were: the 1494 Treaty of Tordesillas, the 1713 Treaty of Utrecht, the 1751 Border Treaty between Sweden/Finland and Norway/Denmark, the 1763 Treaty of Paris, the 1794 Jay Treaty, the 1819 Adam-Onis Treaty, the 1848 Treaty of Guadeloupe-Hidalgo, the 1867 Purchase of Alaska, the 1916 Migratory Birds Convention and the 1989 ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries; compare E/CN.4/Sub.2/1992/32, paras. 363 -390.) apart from the Lapp codicil, several others would warrant further scrutiny, i.a. the 1794 Jay Treaty and the 1848 Treaty of Guadalupe-Hidalgo, both of apparent special significance for the Indigenous nations along the borders of the United States, Canada, and Mexico respectively.

53. Consequently, the Conclusions and Recommendations to be offered in the present Report will mainly refer to three of the five original juridical situations already identified: 1) where there is proof of international treaties/agreements between Indigenous peoples and States, 2) where there is no specific bilateral legal instruments to govern relations between Indigenous peoples and States and, finally, 3) situations related to the question of "other constructive arrangements".

54. As to the role of these constructive arrangements, the Special Rapporteur notes that activities currently undertaken at the national level --for example, in Mexico, Canada, and Guatemala under different social and political situations-- clearly illustrate some of the fundamental problems he has been led to raise in the course of his mandate, notably the issue of collective rights for Indigenous peoples in the context of today's pluri-ethnic societies and the need for mutually agreed conflict-resolution mechanisms in their particular contexts. (Further review of issues related to this type of consensual compacts will be made in Chapter II-B of this Report.)

55. Also in connection with the three situations outlined above, it must be stressed that treaties themselves and treaty-making (in the broadest sense of this term) are matters, that in the view of the Special Rapporteur, require further conceptual elaboration.

56. He is of the opinion that one should avoid making oneself a prisoner of existing terminology. This does not preclude in any way, however, the conclusions to be drawn from a non-eurocentric historiography of treaties agreements between Indigenous peoples and States and the corresponding status of Indigenous peoples in international law --a historiography to which the Special Rapporteur devoted a crucial section of his second progress report. (E/CN.4/Sub.2/1995/27, paras. 140-171.) There are, basically, two sides to the issue.

57. Firstly, according to the future-oriented aspects of his Study, --that is, the lessons to be drawn from this Study as to the potential of treaties and other consensual legal instruments and practical mechanisms to be negotiated in order to ensure better relations in the future between Indigenous peoples and States--, a narrow definition of "a treaty" and "treaty-making" would hinder or pre-empt any innovative thinking in the field. Yet, it is precisely innovative thinking that is needed Lo solve the predicament in which many Indigenous peoples find themselves at present.

58. Secondly, such a narrow definition of treaties and treaty-making would impede (or even preclude) any proper account of Indigenous views on these issues, simply because of the widely held rationale that Indigenous peoples are not "States" in the current sense of the term in international law, regardless of their generally recognized status as sovereign entities in the era of the Law of Nations.

59. It is worth reiterating that it would be equally erroneous to assume that Indigenous peoples have no proper understanding of the nature, formalities, and implications of treaties and treaty-making.

60. Some authorities on the issue however, attribute to them just this total lack of understanding of the principles of such instruments and their "codes". Nonetheless, not only bibliographical sources but also direct testimony by Indigenous sources gathered by the Special Rapporteur provide ample proof to counter this assumption.

61. It has been brought to his attention from the start of his endeavors that the concept and practice of entering into international agreements --that is, compacts between sovereign entities, whether nations, "tribes" or whatever they choose to call themselves-- was widespread among Indigenous peoples in the Americas, Aotearoa/New Zealand and elsewhere, before the arrival of the European colonizer and continues to be so.

62. In addition, during field research, many Indigenous sources (oceans apart) consistently advised the Special Rapporteur that, on a number of occasions in the course of negotiations, the non-indigenous parties failed to adequately inform their Indigenous counterparts (i.e. their ancestors) of the cause and object of the compact, frequently drafted only in the European languages and then orally translated. The linguistic difficulties this entailed for the Indigenous parties often prevented them from gaining a full understanding of the true nature and extension of the obligations that according to the non-indigenous version of those texts (or construction of its provisions) they had assumed. This situation was obviously not conducive to a free, educated consent by the Indigenous parties to whatever compact emerged from those negotiations. It follows then, that those instruments would be extremely vulnerable in any court of law worthy of its name.

63. The Special Rapporteur is of the opinion that these recounts -- particularly in cases involving the cession of territories by Indigenous parties-- do reflect the actual sequence of events; considering, in particular, the inherent inalienable condition of their lands, and the historical situations faced by many Indigenous nations.

64. Dealing also with the fundamental principals governing treaty-making and their 'codes", Charles Alexandrowicz has demonstrated --with the example of early African treaties with European powers (or with their successors for that matter)-- that, while specific concepts regarding power, kingship and other matters of political organization may have differed between the two parties, they nevertheless rarely failed to find common ground as far as those principles were concerned.

65. Among these commonly shared fundamental principles of treaty-making, one finds: the need for mandated representatives to engage in negotiation, basic agreement on the subject matter of treaties, and concepts relating to the need for ratification and the binding power of any type of formally negotiated compacts.

66. However, it should be noted that an exhaustive study of the Indigenous viewpoint on a number of important aspects of treaties and treaty-making, still remains to be done. Although this falls squarely under the Special Rapporteur's mandate, sufficient resources have not been available for completion of such a task. Nonetheless --in accordance with Martinez Cobo's recommendations-- he has endeavored whenever possible to take proper account of the Indigenous knowledge and institutional setup regarding the history of treaties and treaty making, as well as the lessons Indigenous peoples themselves tend to draw from this knowledge in view of redefining their relationship with the States in which they now live.

67. In more theoretical terms, one might argue that the principle of reciprocity represents a cross-cultural feature of treaty-making. This is also borne out by the understanding which various Indigenous parties to treaties perpetuate regarding the basic nature of the treaty relationship.

68. A case in point --but not the only one-- is the Indigenous understanding of some of the numbered treaties in present-day Canada, that has become easily accessible thanks to recently published research.( E.g. Sharon Venne, "Understanding Treaty Six: Indigenous Perspective," 10: Aboriginal and Treaty Rights in Canada (M. Asch Ed.) (Vancouver: University of British Columbia Press, 1996), p.173-204; Treaty Seven Elders and Tribal Council, The original Spirit and Intent of Treaty Seven (Montréal & Kingston: McGill Queen's University Press, 1996).) In conjunction with the work of the Royal Commission on Aboriginal Peoples in that country, a large number of accounts of Indigenous treaty interpretations have been submitted. Unfortunately, the Special Rapporteur has not had the opportunity to study these accounts in depth. Nonetheless, there is no doubt as to their importance for both the handling of Indigenous situations in Canada and his own Conclusions in this Final Report.

69. One final remark on the overall issue of the treaty problematique: it has not been possible for the Special Rapporteur to thoroughly assess ah the possible connections between this problematique and the general question of "the human rights of Indigenous individuals". Obviously, this is a very different notion from that of "the rights of Indigenous peoples", which denotes a much broader scope and includes, in fact, those individual rights.

70. Regarding the contents of this Final Report and in accordance with the terms of reference of the Special Rapporteur's mandate, the process of "domestication" of all issues related to Indigenous peoples is of singular importance and obviously requires further analysis and elaboration in this final stage of his work. An extensive review of the origin of this process is necessary to gain a full understanding of crucial juridical and socio-economic elements in the present situation of these peoples, as manifested in former European settler colonies (and the more modern States which succeeded them) when the relationship originated, and also as it now exists in the relevant today mufti-national modern States in Latin America, Africa, Asia, the Pacific, and northern Europe.

71. Consequently, this question will be dealt with in extenso in the Conclusions offered in Chapter III of this Final Report.

72. On the other hand, the process of the domestication of Indigenous issues must be set off against that of independence/ decolonization in the Latin American, Afro-Asian and Pacific countries (which differ greatly) , since it raises a further and very pertinent issue; namely that of the relevance of the concept of "indigenousness" to refer to any possible case of "State-oppressed peoples" --including "minorities" -- in the particular context of today's Afro- Asian and Pacific States.

73. In the latter countries, the era of decolonization brought about a radically changed concept of the qualifier "Indigenous" This as a result of a new political context, whose most visible symbol was the emergence of a large number of new States, under contemporary international law. Thus, from a conceptual viewpoint, the Special Rapporteur considers it necessary to re establish a clear-cut distinction between Indigenous peoples and national or ethnic minorities.

74.  In this connection, it should be noted that in 1991, at the beginning of his work, and lo establishing guidelines for his research as a whole, the Special Rapporteur decided to strictly distinguish between "minorities" and "Indigenous peoples". (E/CN.4/Sub.2/l99l/33, para. 98; for implementation, see E/CN.4/Sub.2/l995/27, paras. 48-129. Compare also infra, chapter II.) In addition, it should be borne in mind that according to the criteria adopted by him in 1995 with respect to his future plan of work, in the final phase "the emphasis...of the Study should be on cases and situations in which the 'Indigenous peoples' category is already established beyond any doubt from a historical and modern day point of view;...". (E/CN.4/l995/27, para. 126.)

75. Years of research and reflection at various levels of the United Nations system, especially by the Commission on Human Rights and its Sub-Commission, have not yielded a generally accepted definition of the term "minority", nor of the qualifiers often associated with it, such as "ethnic" or "national

76. The significance, on the other hand, of the "working definition" of "Indigenous peoples" formulated by the Special Rapporteur José Martinez Cobo in the last part of his report in his Study, lies in the fact that his Conclusions have been recognized as "an acceptable basis of work" by the Commission and its subsidiary bodies.

77. Nevertheless --as has been argued earlier in the progress reports for this Study-- to Martinez Cobo's attempt to extend his "working definition" to all cases brought to his attention in the course of his mandate, he tended to lump together situations that this Special Rapporteur believes should be differentiated because of their intrinsic dissimilarities.

78. These dissimilarities hinge on a number of historical factors that call for a clear distinction to be made between the phenomena of the territorial expansion by Indigenous nations into adjacent areas, and that of the organized colonization, by European powers, of peoples inhabiting, since time immemorial, territories on other continents.

79. Of particular concern to the Special Rapporteur, viz a viz this Study, was the fact that, in the context of today's United Nations practice and according to existing international legal instruments and standards, the securing of effective international protection of minority rights remains very much confined to the realm of their individual rights. In addition, this overall issue is mainly dealt with as a matter privy to the internal jurisdiction of States, thus precluding any other alternative approach.

80. Yet, Indigenous peoples justly attach considerable importance to the recognition, promotion, and securing of their collective rights, that is, their rights as social groups. Equally, they seek the possible establishment of international mechanisms for the resolution of conflicts with State authorities, in particular, in connection with the rights recognized in, or acquired by means of instruments with acknowledged international status, such as treaties.

81. Consequently, the Special Rapporteur has already expressed the view that Indigenous peoples, although they may constitute numerical minorities to a number of the countries in which they now live, they are not "minorities" under United Nations usage and possible practical action.  (E/CN.4/Sub.2/1995/27, para. 116.)  By the same token, ethnic and national minorities are not be considered "Indigenous peoples" in the United Nations context.

82. It is worth pointing out that United Nations policy on this point is now well established; especially since 1994 with the commissioning of the Working Group en Minorities within the Sub-Commission, by decision of ECOSOC upon the recommendation of both the Commission and the Sub-Commission itself. (Resolution 1994/4, of 19 August 1994.)

83. In the course of his conceptual reflections, the Special Rapporteur was also led to underscore that in the African and Asian contexts, the problematic of Indigenous communities is rarely coextensive with that of the treaty relationship (E/CN.4/Sub.2/1995/27, paras. 116, 128.) -although it may well be that an exception warranting further scrutiny is the case of the Maasai, given their role in the negotiations leading to Kenya's independence.

84. It remains nevertheless true that communities which could be regarded as Indigenous in the context of Martinez Cobo's Study, given their life-styles and habitat -- but excluding other factors, such as their "indigenousness" condition today as compared with the "indigenousness" of other communities coexisting with them in the post-colonial era in the territory of practically all States on those continents-- tended not to be parties to treaties or agreements either with the colonial powers or with the States that succeeded those powers after decolonization and independence. (E/CN.4/Sub.2/1995/27, para. 307.)

85. It must be underlined, however, that the Special Rapporteur has not been in a position to assess all possible overlaps and contradictions of every treaty-related issue and the overall Indigenous problematique in the African and Asian contexts.

86. Moreover in this connection, it can be validly argued that the legacy of "protected" tribal areas in Africa and Asia (especially in regions formerly included in the British colonial empire, for example in India and southern Africa) has raised a number of specific problems --particularly when reflected in the work of some international organizations, such as the ILO and the Organization of American States-- that has contributed to the confusion on the issue of the well-established, clear-cut minorities/indigenous dichotomy.

87. Despite important lacunae in this respect, the Special Rapporteur has been led to draw some tentative ground rules from these particular issues, in particular, regarding the status and situation of Indigenous peoples not yet parties to any formal and consensual bilateral juridical instrument.

88. It should be recalled that many representatives of what they describe as State-oppressed groups/ minorities/ peoples in Africa and Asia have brought their case before the working Group on Indigenous Populations for lack of other venues to submit their grievances to. This situation is new being remedied with the establishment of the working Group on Minorities.

89. It follows that, while their particular situation may qualify as a matter for general consideration within the framework of United Nations activities on the overall issues of the prevention of discrimination and the protection of minorities, its relevance is either tangential, extremely limited, or non existent in a contemporary context regarding the issue of treaties/agreements and constructive arrangements between Indigenous peoples and States -- including their role in view of future agreements between Indigenous and non-Indigenous parties --, and particularly for the present Study in the light of the terms of reference in the Special Rapporteur's mandate under Commission on Human Rights resolution 1988/56.

90. In this final phase of the Study, the emphasis, as expressed earlier, is therefore to lie only on situations where the category of Indigenous peoples has been established beyond doubt.

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