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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 […]
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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