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Words that Fly Back and Forth Between Two Mutually Oblivious Worlds: What is the Legal Meaning of an “Indigenous Way of Life”?
Published online by Cambridge University Press: 20 July 2015
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This article highlights the trajectory of indigenous peoples’ territorial claims when they appear before certain international and regional authorities that protect human rights. It demonstrates that the right of indigenous peoples to have their ways of life respected is a misguided and hollow response to their claims, at best approximate and ambiguous. However, the right to communal property of ancestral lands and essential resources entrenched by international courts, even if it directly echoes back to indigenous claims, is formulated in a specific language and vocabulary and according to categories defined by the dominant society. As a consequence, rights derived from this process are confined to an intrastate pluralism, since they are shaped by sources of law defined by member states that have signed regional charters and conventions protecting human rights. In the absence of a reciprocal intercultural dialogue that would facilitate a mutual circulation of ideas in the language and based on the beliefs held by indigenous and non-indigenous peoples – the only real tool for effective decolonization – the initial hypothesis, that the communal right to ownership facilitates the decolonization process, is partially invalidated.
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- Copyright © Canadian Journal of Law and Jurisprudence 2014
References
I would like to thank Ronald Niezen for taking the time to read an earlier version of this article and for his comments, which have greatly advanced my thinking on this topic. Thanks go as well to the participants in the closing session of the Indigenous Peoples and Governance project for many fruitful exchanges. Finally, I would like to thank Kathe Lieber for the translation of previous version of the document.
1. “It is the responsibility of the authorities of the State to create conditions enabling the Sámi people to preserve and develop its language, culture and way of life”. Kongeriget Norges Grundlov, given i Rigsforsamlingen paa Eidsvold den 17 de Mai 1814, art 110a, online: Government of Norway http://www.constitution.org/cons/norway/dok-bn.html.
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9. The use of the concepts of “majority society” or “dominant society” may be criticized insofar as they tend to position indigenous peoples as being at odds with liberal society or non-indigenous peoples, presenting them as isolated groups and wiping out the multidimensional nature of their identities. Indigenous peoples belong to a complex transnational network and follow a diverse range of practices and values. However, we use these concepts due to the persistence of a balance of power between them and the dominant liberal society. That balance of power is demonstrated by the fact that they are required to conform to legal concepts and forms of reasoning arising from colonialism at domestic and international levels.
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14. The ILO monitors the implementation of Convention 169, Convention Concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 72 ILO Official Bull 59 (in force 5 September 1991) [Convention 169].
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17. “Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.” American Declaration on the Rights and Duties of Man, 1948, OAS Res XXX, art 23 [American Declaration].Google Scholar
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19. See, for example, Awas Tingni, supra note 18 at para 83; Dann, supra note 18 at para 46.
20. See, e.g., Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin (29 November 1983), Inter-Am Comm HR, OEA/Ser.L/V/II.62/doc. 10 rev 3, online: Organization of American States http://www.cidh.oas.org/countryrep/Miskitoeng/toc.htm.
21. Proposed American Declaration on the Rights of Indigenous Peoples, (26 February 1997), Inter-Am Comm HR, OEA/Ser.L/V/II.90/doc 9 rev 1, online: Organization of American States http://www.cidh.oas.org/indigenas/chap.2g.htm [Proposed American Declaration].
22. Convention 169, supra note 14.
23. 1.1. The States Parties to this Convention undertake to respect the rights and freedoms recog nized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, lan guage, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
1.2. For the purposes of this Convention, ‘person’ means every human being.
“2. Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.” American Convention, supra note 16, arts 1-2.
24. See, in particular, the Awas Tingni Community’s petition to the Inter-American Court of Human Rights. The Mayagna Indian Community of Awas Tingni & Jaime Castillo Fellipe, Petition, Inter-Am Com HR, 1995, 2 October 1995, at paras 43-45, online: Indigenous Peoples Law and Policy Program http://www.law.arizona.edu/depts/iplp/international/awas.cfm [Awas Tingni Petition]. In the petition of Mary and Carrie Dann against the United States, the claimants further explained that, “The right to property affirmed in article XXIII [of the American Declaration], especially when considered in light of the fundamental principle of non-discrimination, embraces those forms of landholding and resource use that derive from the traditional land use and occupancy patterns of an indigenous people such as the Western Shoshone.” Dann, Mary and Dann, Carrie, Petitioners’ Supplemental Submission: Brief on the Merits, March 2000, at para 17Google Scholar, online: Indigenous Peoples Law and Policy Program http://www.law.arizona.edu/depts/iplp/international/westernShoshone.cfm.
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26. Protocol 1, Article 1: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221, Eur TS 5, Protocol 1, art 1 [European Convention].
27. See, in particular, the 1981 Taxed Mountain Case, in which the Swedish Supreme Court recognized the Saami people’s usufructary land right. Kvist, Roger, “The Racist Legacy in Modern Swedish Saami Policy” (1994) 14 Canadian Journal of Native Studies 203 at 212.Google Scholar
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29. Könkämä, supra note 25 at para 1.
30. Supra note 25.
31. Memorandum of the applicants, submitted to the European Court of Human Rights on November 5, 2007, in the case of Handölsdalen at para 73.
32. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (2010), ACHPR, No 276/2003, online: Refworld http://www.unhcr.org/refworld/publisher,ACHPR,,4b8275a12,0.html [Endorois Welfare Council].
33. “The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.” African [Banjul] Charter on Human and Peoples’ Rights, 28 June 1981, 1520 UNTS 217, OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982) (entered into force 21 October 1986), art 14 [African Charter].
34. Endorois Welfare Council, supra note 32 at paras 87-89.
35. Ibid at paras 93-94.
36. The Social and Economic Rights Action Centre for Economic and Social Rights v Nigeria (2001), ACHPR, Application No 155/96 at paras 56–58 [SERAC].Google Scholar
37. “1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.” African Charter, supra note 33, art 21. The African Commission had previously made a similar ruling in the case of SERAC, supra note 36.
38. Endorois Welfare Council, supra note 32 at para 124.
39. On this line of reasoning, see Anaya, S James, “The Awas Tingni Petition to the Inter-American Commission on Human Rights: Indigenous Lands, Loggers, and Government Neglect in Nicaragua” (1996-1997) 9 St Thomas LR 157 at 184ffGoogle Scholar. On the approach taken by the Inter-American Court, see (more broadly), Hennebel, Ludovic & Tigroudja, Hélène, eds, Le particularisme interaméricain des droits de l’homme (Paris: Pedone, 2009).Google Scholar
40. International Covenant on Civil and Political Rights, 19 Dec 1966, 99 UNTS 171, arts 9-14, Can TS 1976 No 47, 6 ILM 368 (entered into force 23 March 1976 by accession by Canada 19 May 1976), art 27 [ICCPR].
41. George Howard v Canada, UNHRC, 2005, Communication No879/1999 CCPR/C/84/D/879/ 1999 at para 10.2Google Scholar, online: United Nations http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/a981f075b1aa655ec1257068004b2140?Opendocument [Howard]. The claim that the right to the land derives from the right to one’s own culture is also supported in doctrine. See Ahrén, J Mattias, “The Provisions on Lands, Territories and Natural Resources in the UN Declaration on the Rights of Indigenous Peoples: An Introduction” in Charters, Claire & Stavenhagen, Rodolfo, eds, Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples, vol 127 (Copenhagen: IWGIA, 2009) 200.Google Scholar This argument was also used by the Awas Tingni community and its lawyers in their application to the Inter-American Commission, in addition to the application regarding the foundation of the right to property. See Awas Tingni Petitition, supra note 24 at paras 46-49.
42. “[T]he processes by which people define who they are, above all the ways they articulate and defend their collective rights and shape and represent their distinct cultures, are now often negotiated and mediated in collaboration with distant publics.” Niezen, Ronald, Public Justice and the Anthropology of Law (Cambridge: Cambridge University Press, 2010) at 2.CrossRefGoogle Scholar
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46. Notably Awas Tingni, supra note 18 at para 153.
47. Ibid at para 149.
48. Moiwana, supra note 18 at para 131.
49. See the following cases: Moiwana, supra note 18; Yakye Axa, supra note 8; Sawhoyamaxa Indigenous Community v Paraguay (2006), Inter-Am Ct HR (Ser C) No 146; Saramaka People, supra note 7; Xákmok Kásek Indigenous Community v Paraguay (2010), Inter-Am Ct HR (Ser C) No 214.
50. Saramaka People, supra note 7 at paras 121-23, 125. The restriction of the right to collective ownership of natural resources “essential to an indigenous way of life” is open to criticism, as it runs the risk of essentializing indigenous identities. The judgment in Saramaka People is nonetheless the only case to date involving such a restriction, so it is difficult to determine how significant it will be. In addition, the Inter-American Court did show some openness in defining essential natural resources.
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53. Ibid at paras 188-89, 201.
54. On the emergence of an agreed-upon and negotiated right in African legal systems, see Barrière, Olivier & Rochegude, Alain, Foncier et environnement en Afrique. Des acteurs au(x) droit(s) (Paris: Éditions Karthala, 2008)Google Scholar. On the norms that have been generated by the African judicial tradition, see Menski, Werner, Comparative Law in a Global Context: The Legal Systems of Asia and Africa, 2nd ed (New York: Cambridge University Press, 2006) at 464-86CrossRefGoogle Scholar.
55. Endorois Welfare Council, supra note 32 at para 206.
56. Ibid at paras 204-05.
57. Ibid at paras 255-68.
58. Saramaka People, supra note 7 at para 121 [emphasis added].
59. “[T]he Court’s current emphasis on distinctivism can lead to an equally distorted preservationist impulse to control the pace of change, to ‘protect’ those original people living close to nature, to recognize distinct rights only to the extent that they are far removed from economic and political development.” Niezen, Ronald, “Culture and the Judiciary: The Meaning of the Culture Concept as a Source of Aboriginal Rights in Canada” (2003) 18 CJLS 1 at 25.CrossRefGoogle Scholar
60. Ibid.
61. Grammond, supra note 10 at 96-97 [translated from French].
62. For a similar observation on the handling of cases brought by indigenous communities in the United States, see Clifford, James, “Identity in Mashpee” in Predicament of Culture: Twentieth-Century Ethnography, Literature and Art (Cambridge: Harvard University Press, 1988) at 277.CrossRefGoogle Scholar
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64. On the nuances between the terms “consultation,” “concertation” and “negotiation,” see Touzard, Hubert, “Consultation, concertation, négociation: Une courte note théorique” (2006) 5 Négociations 67.CrossRefGoogle Scholar
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66. Here we only briefly discuss the perspective of the Inter-American Commission, which is especially interesting from the Canadian viewpoint. However, our approach is based on the fact that the Commission followed the same line of reasoning as the Inter-American Court. On this point, see the decision in Dann, supra note 18.
67. Yakye Axa, supra note 8 at para 135.
68. Otis & Laurent, supra note 25 at 12 [translated from French].
69. Ibid.
70. G and E, supra note 6 at 35.
71. Ibid at 36. It is interesting to note the former European Commission’s representation regarding the Saami territory. The Commission compared it to the area that would be fooded by the hydroelectric dam, stating that “by comparison with the vast areas of northern Norway used for reindeer grazing and fshing, the Alta River project would mean only a relatively small loss of territory for the petitioners.” Ibid at 36. According to the Commission, northern Norway seems to be an empty space, untouched by colonization. Moreover, what appears to be important is not the territory as it is lived, with particular areas having a particular meaning to the people who have occupied it since time immemorial, but rather the vastness of the land.
72. Leclair, supra note 2.
73. European Convention, supra note 26, art 8(2).
74. G and E, supra note 6 at 36.
75. Ibid at 36.
76. For further details, see Kvist, supra note 27.
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