Thematic Review II.2: Dams, Indigenous Peoples and Ethnic Minorities

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Dams, Indigenous Peoples and Ethnic Minorities 5 Article 30 of the Draft Declaration acknowledges that: ‘Indigenous Peoples have the right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including the right to require the State to obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources particularly in connection with the development, utilization or exploitation of mineral, water or other resources….’ 1.7 Rights of restitution Many indigenous peoples have already suffered loss of their lands to development. While ILO Conventions #107 and #169 are mute on this issue, Article 27 of the Draft Declaration recognises that: Indigenous Peoples have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and informed consent. Where this is not possible they have the right to fair compensation. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status. Similar recommendations have been made by the United Nations Committee on the Elimination of Racial Discrimination. At its 1235 th meeting on 18 August 1997 the Committee noted: ‘The Committee especially calls upon States parties to recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned and otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.’ 11 1.8 Other key rights A number of other rights of Indigenous Peoples are particularly relevant to this study. Notably, ILO Convention # 169 recognises the right of Indigenous Peoples to exercise their customary law, a right more fully affirmed in the UN’s Draft Declaration. International law also makes clear how states and other institutions should interact with Indigenous Peoples. Article 6 (1) of Convention #169 notes: In applying the provisions of this Convention, governments shall: a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them; c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose. This is a draft working paper of the World Commission on Dams. It was prepared for the Commission as part of its information-gathering activity. The views, conclusions, and recommendations are not intended to represent the views of the Commission.
Dams, Indigenous Peoples and Ethnic Minorities 6 1.9 The right to self-determination The existing ILO Conventions regarding indigenous peoples are unique in a number of respects, perhaps most importantly in their recognition of the collective rights of the indigenous group to own land and other resources, enter into negotiations and regulate the affairs of its members in line with customary laws. To a limited extent, therefore, Indigenous Peoples are already recognised by international law as autonomous seats of power within States. Indigenous Peoples themselves go further. They assert their right to be recognised as peoples and, as peoples, to be accorded the right to self-determination, a right of all peoples affirmed in Article 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Whereas ILO Convention #169 is explicitly moot on this issue (Article 1.3), the right of Indigenous Peoples to self-determination is strongly upheld in the Draft Declaration on the Rights of Indigenous Peoples, which has already been endorsed by the UN’s Sub- Commission on the Prevention of Discrimination and the Protection of Minorities and is now being reviewed by the Human Rights Commission. In the meantime, the United Nations Human Rights Committee (HRC) appears to have already accepted that Indigenous Peoples do enjoy the right to self-determination. In its recent commentaries on Canada’s compliance with its obligations under the International Covenant on Civil and Political Rights and the rights of Canada’s ‘Aboriginal Peoples’, the HRC notes: ‘the Committee emphasizes that the right of self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence (Article 1(2)). The Committee recommends that decisive and urgent action be taken towards the full implementation of the RCAP [Royal Commission on Aboriginal Peoples] recommendations on land and resources. The Committee also recommends that the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with Article 1 of the Covenant.’ 12 Historically, European nations did not hesitate to recognise the rights of Indigenous Peoples in the regions that they were ‘discovering’ to act as sovereign nations, hold territory, own land, exercise their customary law and maintain their own forms of government. Indeed they often based their claims to indigenous territories on their conquest of, or alliance with, Indigenous Peoples. 13 Accordingly treaties were often signed with Indigenous Peoples as binding agreements between sovereign powers. 14 The question of Indigenous Peoples and corresponding rights is likely to continue as a major item of discussion at the United Nations for some years. 15 For the purposes of this study what is important is to recognise that one of the key reasons that Indigenous Peoples identify themselves as such is because they assert this right to self-determination. By virtue of this right they seek to renegotiate their relations with the States in which they now find themselves in order to achieve greater autonomy in their social, cultural, economic and political development. At the minimum what they are seeking is the right to control their territories and to ensure that no developments should be imposed without their free and informed consent as expressed through their own representative institutions. 1.10 Rights of Minorities By contrast with Indigenous Peoples, minorities enjoy far fewer special rights under international law. Whereas the duty of States to protect minorities was one of the organising principles of the League of Nations in the first part of the 20 th century, since the second World War international law has been constructed around the interdependent concepts of the rights of peoples and the rights of individuals within nation states. 16 This is a draft working paper of the World Commission on Dams. It was prepared for the Commission as part of its information-gathering activity. The views, conclusions, and recommendations are not intended to represent the views of the Commission.
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Thematic Review II.2: Dams, Indigenous Peoples and Ethnic Minorities

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