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

CHAPTER II, part 2

B) Other Constructive Arrangements

126. Turning now to the quasi-juridical term other constructive arrangement, it must be recalled that this was defined by the Special Rapporteur from the start as "any legal text or other documents that are evidence of consensual participation by all parties to a legal or quasi-legal relationship." [E/CN.4/Sub.2/1991/33, para. 96]

127. The main example examined under the heading of "other constructive arrangements" concerns the Greenland Home Rule. At the start of his mandate, on the basis of various submissions made by the Greenlandic delegates and the Danish Government to the Working Group, the Special Rapporteur thought it convenient to assess whether the kind of procedure instituted by Denmark in1979 could be useful for the realization of improved relations between Indigenous and non-indigenous parties. [E/CN.4/Sub.2/1992/32, paras 347]

128. His more recent, detailed analysis of the Greenland Home Rule, [E/CN.4/Sub.2/1996/23, paras. 171-196 ] showed proof, in the view of the Special Rapporteur, that the arrangement in question entails a number of restrictions for the Indigenous population of the island, both in terms of the process which led to its establishment, as well as to the effects of its provisions. For example, since the Danish constitution has full effect in Greenland, the Home Rule Authorities must abide by all constitutional provisions in crucial fields such as foreign policy and the obligations arising from international agreements entered into by Denmark.

129. This could have had certain grounds for legitimization --in terms of the real exercise by Greenlanders of the right to self-determination-- had the effective input of the Indigenous population of Greenland into the formulation and implementation of Home Rule not been limited. For instance, according to the information available to the Special Rapporteur, Greenlanders were -contrary to the Danes-- not consulted by referendum about the institution of Home Rule.

130. The Special Rapporteur is of the opinion that the type of "autonomy regime" provided for under the Home Rule does not amount to the exercise of the right to self-determination by the population of Greenland. By the same token, he believes that the way in which the discussions took place between Greenlandic and Danish officials prior to the introduction of Home Rule in 1979 can in no way be described as a constructive example of how to understand the actual full exercising of such an inalienable right.

131. In other countries, discussions are currently taking place with the view to establishing (or implementing) autonomy regimes, or adopting measures to recognize a distinct legal status for Indigenous peoples, whether these are to be decreed by law or to be enshrined in the national constitution. Prominent examples addressed by the Special Rapporteur concern the Kuna Yala in Panamaand the Atlantic region in Nicaragua. [E/CN.4/Sub.2/1996/23, paras. 117-125 and 126-144] One should also take cognizance of the new developments taking place in Guatemala in these last years.

132. These autonomy regimes have brought (or may bring) certain advantages to Indigenous peoples. For example, in the case of Panama, autonomy has allowed for the recognition, by the State, of the traditional political authorities of the Kuna Indians, especially the Kuna General Congress, and some control over development policies within the Indigenous territory.

133. The Special Rapporteur notes, however, that recognition of "autonomy" for Indigenous peoples within the State (whatever powers or restrictions thereto are established), most probably will not automatically end State aspirations to eventually exert the fullest authority possible (including integrating and assimilating those peoples), nor, in that case, nullify whatever inalienable rights these people may have as such.

134. Moreover, the mechanisms through which "autonomy regimes" for Indigenous peoples are being formulated and implemented must be assessed, on a case-by-case basis, for proof of free and informed consent of all parties concerned, especially Indigenous peoples. [compare E/CN.4/Sub.2/1992/32, para. 338 ]

135. Similar concerns might be raised about other juridical situations that could be described by some sources as "constructive arrangements" --most prominently the James Bay and Northern Québec Agreement (Convention in its French version), the first in a series of so-called "comprehensive land claims settlements" in Canada-- which were addressed by the Special Rapporteur in his third progress report. [E/CN.4/Sub.2/1996/23, paras. 85-115 ]

136. These concerns refer to, inter alia, the fact that in this particular case, treaty negotiations were only set in motion after considerable turmoil in connection with a vast, government-sponsored hydro-electric project. Moreover, the amount of litigation the agreement in question has generated led the Special Rapporteur to very seriously ponder the efficacy of treaty negotiations in situation of economic, environmental and political duress resulting from one-sided Government policies.

137. Given the actual prevalence of the policy of comprehensive land claims settlement in Canada and the avalanche of documentation requiring review in this regard, the Special Rapporteur is not in a position, at present, to hold nothing more than tentative views on other cases regarding this particular type of "constructive arrangements".

138. Discussions and negotiations currently taking place in several countries (not only in Canada), warrant further, long-term analysis of the mechanisms envisaged and applied to arrive at a settlement, and the modalities of their implementation. It should be noted in this regard that the completion of several land claims settlements and so-called "modern treaties" in Canada raises a number of interesting issues. Among them is the wide variety of parties (Indigenous nations, provincial authorities, and the federal Government) involved in such processes.

139. The significance and international relevance of developments in that country cannot be overstressed. This is so, if only because they highlight the importance and potential utility of establishing sound, equitable "ground rules" for the negotiations required to draft and conclude "constructive arrangements", as well as for the efficient performance of the mechanisms needed for their practical implementation which are so necessary for developing new approaches to Indigenous problems. Not only in Canada, but also in all other multinational countries with the same or similar problems.

140. Indeed, all this will be put to the test in the vast array of "comprehensive land claims settlement" and treaty negotiations are currently taking place in various regions of Canada. For example, in British Columbia -where a first agreement was reached with the Nishga in 1996 --, and in the Northwest Territories -- where one notes the particular difficulties encountered by Indigenous peoples.

141. Thus, after negotiations with the Déné nation as a whole broke up in the late eighties, the State party decided to negotiate with individual bands. To date, two settlements have been reached, namely with the Sahtu and the Gwich'in. [By the same token, the Special Rapporteur wishes to correct an error of generalization he made in para. 87 of third progress report (E/CN.4/Sub.2/1996/23), regarding the Déné and Métis of the Mackenzie Valley (Northwest Territories) ]

142. Such fragmentation of Indigenous entities via the negotiation process also occurred in other cases, for example regarding the Lubicon Cree. Accordingly to the information available to the Special Rapporteur, a new band was created -- under questionable conditions, according to some Indigenous sources -- to facilitate a partial land claims settlement. To date, however, the Lubicon case itself has not been settled, mainly because the Indigenous party is unwilling to accept the complete extinguishment of native title as a prerequisite for settlement.

143. In all situations --whether or not governed by treaty/agreements-- the issue of possible extinguishment of Indigenous rights to their lands, either by treaty/agreement or "constructive arrangements" is of crucial importance, since it imposes duress on the Indigenous party.

144. It follows that the category of "other constructive arrangements" while added belatedly to the mandate of the Special Rapporteur, has revealed itself to be of particular significance as far as how to identify and duly establish solid bases for a new, more equitable future relationship between the Indigenous and non-indigenous sectors of society is concerned.

145. At this stage it is important to note that contrary to treaties (especially so-called "historical" treaties), constructive arrangements --and this applies to all examples considered to date under the mandate of the Special Rapporteur-- are intended, per se, as to be dealt with exclusively within the municipal setting.

146. In accordance with the abundant information recently received, in situ, by the Special Rapporteur, it seems clear that in the Canadian context, constructive arrangements such as "comprehensive land claims settlements" and so-called "modern treaties" are basically conceived as a means to settle all outstanding Indigenous claims. According to this information, they mostly concern areas in which Indigenous peoples are not parties to treaties. In general it remains to be seen in what manner the enforcement and implementation of the provisions of possible constructive arrangements of this type can be ensured, especially for the Indigenous parties to such agreements.

C) Situations lacking specific bilateral legal instruments to govern relations between Indigenous peoples and States

147. From the start, the Special Rapporteur decided that, in order to fulfill his mandate, it was imperative to review the situation of Indigenous peoples that are not parties to any of the instruments covered by the Study.

148. Lacking such a review, it would be impossible for him to assess whether or not treaty-making (again, in the broadest sense of this term) can be considered as an appropriate juridical tool to improve the situation of Indigenous peoples in general, set the pattern to eradicate any discriminatory treatment against them, and to gradually put an end to the present day antagonistic nature of the relationship existing between Indigenous and non-indigenous peoples living together in many countries.

149. Regarding the categories of Indigenous peoples falling under the present section, the Special Rapporteur identified the following general situations in his first progress report: a) Indigenous peoples who have never entered into consensual relations with any State; b) Indigenous peoples parties to instruments that were unilaterally abrogated --either formally or by way of outright non-implementation-- by the State party; c) Indigenous peoples who participated in the negotiation and adoption of instruments that were never ratified by the competent State bodies; and d) Indigenous peoples living in countries where, as the result of an effective process of acculturation, the municipal legislation lacks specific provisions guaranteeing distinct status to them and protection of their rights as peoples.

150. Peoples falling into one or more of these groupings include, of course, those who, because of the lack of recognition of their Indigenous status by the State, have been denied any possible redress --either in law or by formal negotiation-- in conflict situations related, precisely, to this status. [E/CN.4/Sub.2/1992/32, para. 359 ]

151. First and foremost, it must be pointed out that, at present --and with very few exceptions-- national and international legal texts having a bearing on the living conditions of Indigenous peoples are enacted and enforced by State institutions without direct Indigenous input.

152. The cases initially retained for study under this heading included the Aborigines and Islanders in Australia, the Gitksan and Wet 'suwet'en in British Columbia, the Yanomami of Brazil, the Indigenous Hawaiians, the Mapuche (Argentina and Chile), the Maya of Guatemala, the Lubicon Cree of Alberta (Canada), the San (Botswana), the Ainu (Japan), the people of the so-called rancherías in California (United States), and the Kuna of Panama.

153. Upon finishing his research, the Special Rapporteur considers that it may be useful to review the above list, so as to determine --at least provisionally-- what would be the most practical and fruitful means (i.e. treaty/agreement renegotiation and/or proper implementation, "constructive arrangement", resort to international bodies, or some other formula) of constructively approaching, in the future, the wide array of current situations confronting those peoples mentioned above.

154. In all cases, the historical development of each of their individual predicament must be duly considered, since it may provide definite clues as to the identity of the possible available solutions.

155. It should be stressed however, that any decision concerning such a solution must be reached with full participation of the Indigenous party. No other approach my lead to a much-needed process of confidence-building and thus to consensual legal instruments.

156. The Special Rapporteur has already indicated changes suggested regarding the treaty situation in Latin America (para. _).

157. Thus, the case of the Mapuche actually can be included under the category of peoples who have already participated in a process of treaty-making. Others, like the Kuna, may gain their protection through "constructive arrangements", an apparently still ongoing process. (For the Maya and Yanomami, see infra, para. 165).

158. Furthermore, at this final stage of his research, the Special Rapporteur is in a position to approach the other cases in question according to the pattern described below.

159. A first series of situations, including those of the Lubicon Cree and theGitksan and Wet'suwet'en in Canada, should actually be considered under the category of possible constructive arrangements, provided certain aspects of their situation can be resolved at an early stage in mutually acceptable terms.

160. The case of the Indigenous peoples of Australia might actually be addressed through a process of treaty-making, assuming the so-called Makarrata (or treaty), called for by the Indigenous parties since 1980 remains a running issue. [compare E/CN.4/Sub.2/1995/27, para. 225 ] Nevertheless, this Makarrata should also be viewed, not only against the backdrop of the so-called reconciliation process launched by the Australian federal government in 1991 by virtue of the Council for Aboriginal Reconciliation Act, but also in light of recent judicial and legislative developments, most prominently the Mabo (No. 2) judgment of the Australian High Court (1992) and the Native Title Act enacted at the federal level in 1993.

161. In the case of the so-called rancherías in California, its relevance hinges mainly on the failure of the State party to ratify texts already negotiated with the peoples concerned and should therefore also be considered as a situation of eventual reemergence and proper implementation of treaties.

162. Considering the above, the Special Rapporteur has been led to believe that other cases of the failure of State bodies to ratify treaties negotiated at some point in history with Indigenous parties, ought to be re-examined at the appropriate level, with a view to determine the actual possibility of bringing the ratification process to completion.

163. By virtue of the so-called Apology Bill enacted by the Congress of the United States (P.L. 103-150, of 1993), among other reasons, the situation of the Indigenous Hawaiians takes on a special complexion now. The Apology Bill recognizes that the overthrow of the Hawaiian monarchy in 1898 took place unlawfully. By the same token, the 1897 treaty of annexation between the United States and Hawaii appears as an unequal treaty that could be declared invalid on those grounds, according to the international law of the times.

164. It follows that the case of Hawaii could be re-entered on the list of non-self-governing territories of the United Nations and resubmitted to the bodies in the Organization competent in the field of decolonization.

165. To the actual knowledge of the Special Rapporteur, still in connection with the list of cases considered above, only the Yanomami of Brazil, the Maya of Guatemala, the San (Botswana), and the Ainu (Japan) are examples of Indigenous peoples who never actually entered into consensual juridical relations with any State.

166. The question of whether, and in what manner each of these Indigenous peoples should seek a negotiated agreement --or any other freely agreed-to formula with the States in which they now reside-- remains to be addressed on a case-by-case basis with adequate Indigenous input.

167. Particular consideration should be given, in these cases, to the practical day-to-day consequences (sometimes grave) of the lack of such agreements for their juridical and political status in the mixed societies in which they now live, and for the preservation, promotion and effective realization of their historical rights as peoples, including their human rights and freedoms.

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