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Treaties, agreements and "constructive arrangements": indigenous people and the legal landscape

United Nations Information Centre in Sydney for Australia, New Zealand and the South Pacific

24 November 1992 - Many treaties between indigenous people and the Governments of the countries in which they live carry great symbolic and spiritual meaning. To indigenous people, treaties are seen as providing recognition of their right to self-determination and a guarantee of respect for their collective rights. Indeed, for people whose recent history has been largely one of discrimination and marginalization, marked by land dispossession, forced relocation, cultural assimilation and, in some cases, genocide, a foundation of legal protections is considered vital.

But there is as well a dark reality to the landscape of laws and promises in which indigenous peoples exist. Today as in the past, Governments frequently invoke a legal basis for contravening the rights of indigenous people, especially in cases involving land. In the absence of explicit legal agreements between rulers and indigenous groups, military conquest has also been viewed as an acceptable, quasi-legal means of acquiring resources and territory. Or, conversely, lands inhabited by indigenous people have been presumed vacant, free to be claimed under the principle of terra nullius. Such readings of the "law", in which rulers are favored over indigenous communities, constitute a common thread in the sometimes centuries-old relationship between the two parties -- regional differences and the specifics of colonial conquest notwithstanding.

The designation by the United Nations General Assembly of 1993 as International Year for the World's Indigenous Peoples has focused attention on the current status of treaties, agreements and other arrangements that have been drawn up between Governments and indigenous people. In perhaps the most visible effort in this regard, the United Nations Working Group on Indigenous Populations has initiated a study of these instruments, which are estimated to number in the hundreds.

The study is part of a long-standing and equally ambitious attempt by the United Nations, Governments, non-governmental organisations (NGOs) and indigenous groups to protect indigenous treaty rights in domestic and international law, to devise an international regime of legal standards for indigenous people and to promote indigenous rights and freedoms in general.

The idea for a treaty study under the auspices of the United Nations originated in a report -- "Study of the Problem of Discrimination against Indigenous Populations" -- prepared by Special Rapporteur Jose Martinez Cobo for the Sub-Commission on Prevention of Discrimination and Protection of Minorities. A frank and far-reaching appraisal of the plight of indigenous people, the report is regarded as a milestone in the history of United Nations consideration of the human rights problems faced by indigenous people.

The Martinez Cobo report recommended, among other things, a thorough study into various areas covered by provisions in treaties and conventions arrived at by indigenous peoples with present-day nation-States, or with the countries acting as colonial administering powers at the time in question. State compliance with such legal provisions and their impact on indigenous people were also to be within the study's suggested purview.

In 1988, the United Nations Commission on Human Rights broadened the scope of the inquiry to include not just treaties but agreements and so-called "constructive arrangements" as well, and by framing it as a study on the extent to which the rights of indigenous peoples have been incorporated into domestic and international law. The Commission envisioned paying particular attention to developing universal standards and to achieving the maximum possible promotion and protection of indigenous treaty rights, while taking into account the sovereignty and territorial integrity of States.

The task is turning out to be one of extraordinary magnitude. In a preliminary report issued in July 1991, Special Rapporteur Miguel Alfonso Martinez noted that more than 400 sample treaties had been submitted by Governments and NGOs, and he predicted that thousands of instruments, decisions, decrees and regulations might have to be analysed. The study will be predominantly technical-juridical in nature but cannot fail to take account of anthropological and sociological issues where they have a bearing on legal concerns.

A deliberately loose definition of constructive arrangements is one reason the Rapporteur's mandate has become so all-encompassing. Another is the simple fact that so many types of legal measures can affect the lives of indigenous peoples.

The Rapporteur's report also summarized his early research, which included visits to the Archivos de Indias in Seville, Spain, and the Law Library of the Library of Congress in Washington, D.C. Particularly fruitful contacts were established, he said, with the Governments of Canada and New Zealand, the International Indian Treaty Council and numerous indigenous groups. But his work is not without controversy; at least one indigenous representative has noted that some Governments are opposed to the treaty study. Mr. Alfonso Martinez submitted his first progress report in August 1992 and hopes to submit his final report to the Sub-Commission in 1995.

A Plethora of Pacts

In the United States, according to the Martinez Cobo report, native American tribes are considered "sovereign, domestic, dependent nations that have entered into a trust relationship with the United States Government. Their unique status as distinct political entities within the United States federal system is acknowledged by the United States Government in treaties, statutes, court decisions and executive orders, and recognized in the United States Constitution".

Federal rather than state authority over matters affecting Native Americans stems largely from foreign relations powers and the right given to Congress, as stated in the United States Constitution, "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes".

According to the Indian Law Resource Centre, a non-profit law office in Washington, D.C., which represents Indian nations and indigenous peoples, the sovereignty and self-government asserted by Indian groups in the United States have been eroded by a series of judicial decisions. In one landmark case, Oliphant v. Suquamish Indian Tribe (1978), the United States Supreme Court ruled that Indian jurisdiction over non-Indians would be inconsistent with the Indian nation's inferior legal status under United States law.

Indians and many legal commentators view the ruling in Oliphant as an unprecedented restriction of Indian self-government. Until this case, says the Centre, Indian nations had retained all the powers of sovereign nations except where they had ceded some elements of sovereignty in treaties or where Congress had withdrawn such powers by federal statute.

In Canada, the constitutional lines are blurred among federal, provincial and indigenous governments. As in the United States, the implementation of the trust relationship between the parties has been described by Indian advocates as inadequate, with the treaty rights of native groups frequently violated or ignored.

In addition, the language in Canada's new constitution, which came into force in 1982, appears ambiguous concerning the rights of indigenous people. The document proclaims, among other things, that the "existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed". But which specific rights are "existing"? What protections are there for rights defined after 1982? Many indigenous groups fear a narrow interpretation of the Constitution's intended safeguards, particularly on issues of land, resources and self-government.

Testament to the volatile nature of legal issues affecting the indigenous peoples of Canada was offered in 1990 when the sole Indian member of the Manitoba legislature blocked a major revision of the constitution as anticipated in the Meech Lake Accord. Many indigenous groups were known to feel that the planned agreement did not adequately address their concerns.

A new package of constitutional revisions and other legislative measures was to be voted on in a national plebiscite scheduled for October 1992. Most Canadian indigenous groups were supporting this agreement, which included recognition of the inherent right of indigenous peoples to self-government within Canada. The first such recognition offered under Canadian law, this historic step could lead to the establishment of a third level of government in Canada in addition to already-existing federal and provincial/territorial set-ups.

On a less familiar front -- the situation of tribal peoples in the developing world -- one problem area is that of treaties promulgated during colonial rule. In the post-colonial era, many such agreements have been side-stepped, amplified or otherwise changed.

A furore has erupted in Bangladesh over the settling of non-tribal Bangladeshis in the Chittagong Hill Tracts District, an area set aside under British rule for 12 native tribal groups. Successive laws of 1860, 1892 and 1900 were aimed at annexing the region and consolidating imperial control; at the same time, the colonial powers tried to prevent large-scale incursions of non-tribal people. In 1964, the district's special status within East Pakistan was abolished, and when Bangladesh achieved independence in 1971 the new Constitution upheld the 1964 repeal.

The major law relating to the millions of indigenous people in India is the Scheduled Tribes Act, which calls for protective legislation. The Act has been updated since its original passage in 1936, but some of the distinct rights that may have favoured certain tribal groups under the British Crown have been superseded.

Using the Law

In their struggle to secure or regain what they view as legally and historically theirs, indigenous communities have achieved incremental progress by resorting to the very legal tools that have let them down in the past.

In the United States, the complex and emotional issue of land claims has yielded a few limited successes. The Passamaquaddy and Penobscot Indians of Maine went to court over the violation of the Non-Intercourse Act (1790), which provided that no one could buy or take lands from Indians without official United States approval. The tribes were awarded $80 million and used one-third of this sum to buy 300,000 acres of timberland.

The Western Shoshone are pressing claims to several million acres taken from them by an act of Congress in 1863. The Lakota Sioux have refused to accept more than $100 million in court-awarded compensation for the Black Hills, a sacred area expropriated by Congress in 1874 after gold was discovered.

Land claims settlements in Canada have gathered momentum with the proposed creation of Nunavut, a new Arctic territory within the Northwest Territories, in response to long-standing claims by the local Inuit and Dene Indians for more control over their lives.

In exchange for payment of several hundred million dollars, paid out over the course of 14 years, as well as a royalty on earnings from natural resources and land title to a vast expanse of wilderness and tundra, the local native peoples agreed to give up claims to all ancestral lands, including areas with substantial deposits of gas, minerals and oil.

Critics of the deal, including some indigenous groups, have said the Inuit gave up too much. But the agreement's supporters tout it as a model settlement between indigenous people and a Government, citing the protections it offers for linguistic and economic traditions and for the jurisdiction it grants over such things as governmental institutions and the drafting of a constitution.

Other Canadian treaties with indigenous communities were usually much more limited in scope. Treaties concluded with Indian groups during the period of British rule were considered treaties of peace and friendship, and those signed since then have mostly dealt with land issues. In 1983, one of the Government's own committees called the Indian Act of 1876 the main obstacle to Indian self-development and self-sufficiency.

The Saami people of Finland were granted what some describe as an exceptional concession with the creation of a Saami Parliament in 1973, a move paralleled for the Saami people of Norway in 1987. A Norwegian Royal Commission later proposed a treaty on Saami cultural matters to be concluded between Finland, Norway and Sweden. The Saami nation was not expected to be a party to this treaty, which would replicate treaties such as the Lapp Codicil adopted by the Kingdoms of Sweden and Norway in 1751.

The thrust of Government policy regarding the indigenous people of Colombia, who number roughly 500,000 and inhabit nearly 25 per cent of the country's land area, is to recognize their rights to the territories they have traditionally occupied, to extend the total land area of reservations and to adopt programmes for management, conservation and exploitation of natural lands. Statutes governing these policies are on the books, and additional steps are being taken to promote self-government and self-management. For example, authority over all matters relating to the financial administration of Colombia's indigenous communities is handled by traditionally elected Indian councils, or cabildas.

Treaties: The Only Framework for Control Over Land and Resources

Aside from the well-known spiritual bond between indigenous peoples and the earth, land is crucial to them not only as a possession but as the life-blood and economic base of their existence. As the Chairman of Yarrabah, an Aboriginal community in Queensland, Australia, stated recently, "If we haven't got land rights, what've we got to manage anyway?"

From the Royal Charter Companies of centuries past, which traded goods for land and access to natural resources, to present-day equivalents such as transnational corporations, Governments and courts have been forced to address competing claims to resource use. The arbitration of such claims forms one of the more prominent litmus tests for how generously -- or how parsimoniously -- the rights of indigenous peoples are acknowledged and protected.

The rising tide of land claims put forth by indigenous communities also encompasses the right to exploit natural resources beneath the surface. Indeed, access to sub-soil resources and to maritime riches have been central concerns in several successful battles waged by indigenous groups in the Arctic and Pacific Northwest:

• In 1983, the New Zealand Government amended the Fisheries Act so that nothing would prejudice Maori fishing rights granted in the Treaty of Waitingi (1840). In 1988, a historic agreement was reached returning half the country's offshore fishing resources to Maori control over a 20-year period in return for a moratorium on claims. In the United States, a 1974 judicial decision reaffirmed treaties from 1854-1855 stipulating that Indian tribes could take up to 50 per cent of the harvestable number of fish at their customary fishing grounds. The Treaty Indian Tribes of Western Washington have furthered the cause of fisheries management by creating the Northwest Indian Fishing Commission to provide scientific and technical advice and to coordinate inter-tribal sharing of salmon harvests.
• When the Government of Denmark granted home rule to Greenland in 1979, native Greenlanders were assured of self-determination over their natural resources. The Greenland Home Rule Government has jurisdiction over fishing, hunting and other activities such as culture, education, social welfare, health and economic development. In 1985, it concluded a 10-year fishing accord with the European Economic Community. A joint committee from Greenland and Denmark is to determine onshore or offshore projects involving non-living resources.

The exploitation of natural resources raises important questions about sustainable development and environmental degradation, and demonstrates why treaties, agreements and concessions involving natural resources are such critical elements in the larger debate over indigenous treaty rights.

Treaties and Standard Setting by the United Nations In the view of many indigenous groups, the International Labour Organisation's Conventions No. 107 (1957) and No. 169 (1989) -- the leading international legal instruments dealing with the rights of indigenous peoples -- do not go far enough in treating the issue of ownership or exploitation of land and natural resources. The Martinez Cobo report, meanwhile, focused on certain key issues, such as the return of land to indigenous people and their freedom to decide its use and development. It also stated that traditional forms of land tenure and resource use should be promoted.

But the long-awaited milestone on the legal landscape for indigenous people is a Universal Declaration on the Rights of Indigenous Peoples being drafted by the United Nations Working Group on Indigenous Populations. As of the most recent draft, paragraph 31 states that indigenous people have the right "to claim that States or their successors honour treaties and other agreements concluded with indigenous peoples, and to submit any disputes that may arise in this matter to competent national or international bodies".

A key question about the Declaration is whether its provisions, especially those covering land, restitution and compensation, will be retroactive. The issue of restitution begs the question of the method by which indigenous peoples were deprived -- whether by conquest, in clear violation of treaty obligations or through legal alienation where formal title could not be proven by the indigenous people. Indigenous people have also demanded that the Declaration contain provisions guaranteeing that land will be returned and that ownership and access to natural resources will be upheld. The treaty study being compiled by the Special Rapporteur is expected to contribute greatly to deliberations over the draft Declaration by furnishing a historical, regional and contemporary perspective on the relevant legal issues and by triggering what the Rapporteur called a process of soul-searching. Even so, a potential problem will linger over the definition of standards, be it for States or indigenous communities: What is the legal yardstick? A member of the Cree nation makes an impassioned if controversial point:

"One of the most difficult tasks that an indigenous person undertakes in articulating our rights is the discussion concerning our legal system. The non-indigenous peoples immediately refer to custom, or the customary legal system. Our legal systems may be built upon custom, but so, too, are most other peoples' legal systems. For example, no one refers to the English parliamentary system as a customary system. The British have no written constitution. Likewise, our legal system is not written, and our laws are just as valid and principled as the non-indigenous laws."

Source: United Nations Information Centre in Sydney for Australia, New Zealand and the South Pacific

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