RETAINING AND DEVELOPING INDIGENOUS CUSTOmS, TRADITIONS AND

4 9 I V. I N D I G E N O U S I N S T I T U T I O N S

4.1. RETAINING AND DEVELOPING INDIGENOUS CUSTOmS, TRADITIONS AND

INSTITUTIONS Indigenous peoples’ right to retain and develop their own social, economic, cultural and political institutions is a fundamental right under international human rights law. The existence of such institutions is also a core element in the description of indigenous peoples. Article 11 of Convention No. 169 identiies indigenous peoples as those who have retained some or all of their own social, economic, cultural and political institutions, irrespective of their legal status see section 1.1. The existence of distinct social, economic, cultural and political institutions is an integral part of what it means to be an indigenous people and is largely what distinguishes indigenous peoples from other sections of the national population. International human rights provisions on indigenous peoples’ rights thus encompass the promotion and protection of indigenous peoples’ collective right to maintain, control and develop their own social, economic, cultural and political institutions – including their practices, customs, customary law and legal systems. Such institutions are also vital to ensuring consultation with and participation of indigenous peoples in decision-making processes that affect them see section 5. Respect for indigenous peoples’ institutions is integral to Convention No. 169, as stipulated in a series of provisions: Article 21. [Government action shall include measures for]: b promoting the full realisation of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions Article 41. Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned. Article 5. In applying the provisions of this Convention: a the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals; b the integrity of the values, practices and institutions of these peoples shall be respected; Article 61. 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; 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. Article 82. These peoples shall have the right to retain their own customs and institutions where these are not incompatible with fundamental rights […] 5 0 I N D I G E N O U S T R I B A L P E O P L E S ’ R I G H T S I N P R A C T I C E – A G U I D E T O I L O C O N V E N T I O N N O . 1 6 9 In some instances, the term “institutions” is used to refer to physical institutions or organizations, while in other instances it may have a broader meaning that includes indigenous peoples’ practices, customs, and cultural patterns. The preamble of the UN Declaration on the Rights of Indigenous Peoples recognizes the inherent inter-connectivity between indigenous peoples’ institutions, traditions or customs. The Declaration recognizes “the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic, and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources” UN Declaration Preamble: para. 7 Speciically, with regards to indigenous institutions, the UN Declaration on the Rights of Indigenous Peoples stipulates that: Article 5: Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions … Article 18: Indigenous peoples have the right to […] maintain and develop their own indigenous decision-making institutions. Article 20: Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions. Article 34: Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards. Indigenous peoples’ cultures and traditions are dynamic and responsive to the realities and needs of their time. They present a vast spectrum of differentiated institutions and organizational forms. Some have retained traditional legal, social, administrative and governance systems, while others have adopted or been forced to adopt new institutions and organizational forms. Sometimes, indigenous societies are perceived as being static and homogenous, thereby wrongly implying that if they changed or adopted new organizational forms they would become less “indigenous”. However, in reality indigenous societies are multifaceted and dynamic. The provisions of Convention No. 169 should not be understood as being restricted only to traditional institutions, but rather also apply to current practices of indigenous peoples’ economic, cultural and social development. In other words, indigenous peoples’ cultural adaptations and technological development should not reduce or impair the applicability of these provisions. This also implies that indigenous peoples are entitled to establish contemporary institutions, if traditional institutions are no longer adequate to meet their needs and interests.

4.2. PRACTICAL APPLICATION: RESPECT fOR INDIGENOUS INSTITUTIONS