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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
Bangladesh: Traditional governance institutions There are eleven indigenous peoples in the
Chittagong Hill Tracts CHT area of Bangladesh, each with their own language, customs and
cultures.
1
Those not regarded as being indigenous are predominantly members of the Bengali people.
The indigenous peoples of the CHT are recognized as “indigenous” to the CHT region by the CHT
Regulation of 1900 and Act No. 12 of 1995.
Although Bangladesh has a unitary system of government, the legal and administrative system
in the Chittagong Hill Tracts CHT is separate and distinct from those in other parts of the country.
A series of traditional indigenous institutions and contemporary elected councils at the district and
regional levels share the administrative authority in the CHT region with the central government, through
its district and sub-district oficers.
There are three main levels of traditional governance in the CHT:
The •
karbari , normally an elderly man, is the
traditional head or chief of a hamlet or village. In practical terms, the karbari position is, in
most cases, de facto hereditary;
1 These are the Bawn, Chak, Chakma, Khumi, Khyang, Lushai, Marma, Mru, Pankhua, Tanchangya, and Tripura.
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The •
headman , who is in charge of a
mauza. The mauza is a unit of land revenue administration in Bangladesh that has ixed
and demarcated geographical boundaries. In the CHT, the mauza is also a unit of civil and
judicial administration under the charge of the traditional headman
, in addition to being a unit of revenue administration. The headman
is responsible for resource management, land and revenue administration, maintenance
of law and order, and the administration of customary indigenous justice, including as an
appellate authority over the karbari’s judicial functions;
The three
• chiefs
or rajas, who are in charge of the three administrative and revenue
“circles”, of which the 369 mauza in the CHT are part. The raja’s jurisdiction – at one time
based upon tribal and clan divisions – was territorialized during British rule through the
demarcation of ixed geographical areas.
Although, traditional indigenous institutions play an important role in the politics and administration
of the CHT, the most powerful institutions with regard to day-to-day administrative functions are
the elected district councils. These district councils are in charge of matters such as primary education,
public health, isheries, livestock, small and cottage industries. According to the 1997 CHT Accord, land
administration, law and order, and secondary education are also to be transferred to
these councils, which are directly subordinated to the CHT Regional
Council. However, indigenous leaders of the CHT are
largely dissatisied with the status of indigenous peoples’ rights in the CHT, and call for, among other
things, a meaningful revival of autonomy for the indigenous peoples of the CHT and efforts to reduce
discrimination against indigenous peoples on the part of non-indigenous politicians, civil servants, and
mainstream society. Raja Devasish Roy 2004 Challenges for Juridical
Pluralism and Customary Laws of Indigenous Peoples: The Case of the Chittagong Hill Tracts,
Bangladesh John Henriksen: Key Principles in Implementing ILO
Convention No. 169, ILO, 2008.
Greenland: Self-Government Greenland is the world’s largest island with an area
of around 2.2 million sq. km, of which some 410,000 sq. km are not covered by ice. The total population
of Greenland is 56,462 Statistics Greenland, 2008.
The journey of the people of Greenland towards self- government has been long. From the colonization of
Greenland in 1721 it was administered by the Danish Government. From 1945 to 1954, Greenland
igured on the list of non-self governing territories under Chapter XI of the United Nations Charter.
This status changed in 1954 when Greenland was integrated into the Danish Realm.
In 1979, the Greenland Home Rule Arrangement came into force. The Arrangement made
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it possible for Greenland to assume legislative and executive power regarding Greenland’s internal
administration, direct and indirect taxes, ishing within the Exclusive Economic Zone EEZ; i.e. within
200 nautical miles of the Greenland coastline, hunting, agriculture and reindeer breeding, social
welfare, labour market affairs, education and cultural affairs, vocational education, other matters relating
to trade, health services, the housing area, and protection of the environment.
After 20 years of home rule, practically all ields of responsibility that may be transferred under the
Home Rule Act had been taken over by the Home Rule Government. Recognising that there was a
need for revising Greenland’s position within the unity of the Danish Realm, a Greenland Home Rule
Commission was set up at the turn of the year 1999-2000, later followed by a Greenland-Danish
Self-Government Commission in 2004.
In accordance with the terms of reference, the Commission was tasked to “on the basis of
Greenland’s present constitutional position and in accordance with the right of self-determination
of the people of Greenland under international law, deliberate and make proposals for how the
Greenland authorities can assume further powers, where this is constitutionally possible”. Thus,
the new arrangement is to be placed “within the framework of the existing unity of the Realm” and
take its “point of departure in Greenland’s present constitutional position”, i.e. the existing Danish
Constitution.
The Self-Government Commission concluded its work in April 2008, with the presentation of a
Draft Act on Greenland Self-Government. The Act provides for the Self-Government authorities to
assume responsibility for more ields than those already taken over under the Home Rule, with the
exception of the constitution, foreign affairs, defence and security policy, the Supreme Court, nationality,
and exchange rate and monetary policy.
Greenland Self-Government authorities will, accordingly, have the legislative and executive power
within the ields of responsibility taken over, and judicial power will lie with the courts of law, including
with courts to be set up by the Self-Government authorities.
Another signiicant element of the Act is that it rests on the principle of balancing rights and
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obligations. Consequently, Greenland must to a greater extent than today be able to generate the
necessary revenue in order to inance increased Self-Government and, thus, in this way become
less dependent on the subsidy from the Danish Government.
The main idea of the proposed economic model is that revenue from mineral resource activities
in Greenland should accrue equally to the Self- Government authorities and the Danish Government,
but that revenue accrued to the Danish Government should be used to reduce the Danish Government
subsidy to Greenland, and that Greenland itself inances ields of responsibility that are taken over
in the future. This guarantees the Self-Government authorities a stable foundation for economic planning
as it is the Self-Government authorities themselves that decide which ields of responsibility are to be
taken over and when. When the Danish Government subsidy to the Self-Government authorities has been
reduced to zero, negotiations are to be initiated between the Self-Government authorities and the
Government on economic relations in the future.
The Act also recognises that Greenlandic is a key part of the Greenlandic people’s cultural identity, and
that the language therefore should be the country’s oficial language.
Finally, the Act stipulates that independence for Greenland rests on the wish of the people
of Greenland and that if the people so wish, negotiations between the Danish government and
the Greenland Self-Governance authorities should commence. A inal Agreement on Self-Governance
should be endorsed by a referendum in Greenland and be concluded with the consent of the Danish
Parliament.
On Tuesday 25 November 2008, the draft Act on Self-Government was submitted for a referendum in
Greenland. Of the 39,611 people entitled to vote in Greenland, 75.5 percent of the electorate voted “yes”.
The results of the referendum on Self-Governance in Greenland thus made it clear that the people of
Greenland have voiced a resounding “yes” to Self- Governance. Following the referendum and the
consent of the Danish Parliament, the Act on Self- Governance will come into force on 21 June 2009.
For more information see: http:www.nanoq.gl; Draft Act on Greenland Self-Government;
Abbreviated version of the Executive Summary of the Greenland-Danish Self- Government Commission’s
Report on Self-Government in Greenland EC.1920094Add.4 .
Norway: The traditional siida institutions The legal re-introduction of the traditional Sami
reindeer husbandry siida systeminstitution was to a
large extent inluenced and justiied by international legal provisions, including article 5b of Convention
No. 169.
Traditionally, the Sami lived in groups, siida, varying in size, as determined by the resources available
in the area. Within the siida there was no social stratiication. The form of governance was a
stateless local democracy with a leader. The leader presided at meetings, was responsible for dividing
hunting spoils, asserted the rights of the siida to neighboring groups, mediated in internal conlicts
and was the spokesperson for the siida.
Within Sami reindeer herding communities, the siida system was functional until the 1970s, when new
reindeer husbandry legislation nulliied the role of the siida as a legal and social entity. A new system was
introduced, through which the traditional collective siida
system was replaced by a system of individual reindeer-herding license
or operational units. Individuals now had to apply for a reindeer-herding
license “driftsenhet” from state reindeer authorities, and reindeer herding was re-organized into reindeer
herding districts “reinbeitedistrikt”. The boundaries between such areas where often arbitrarily drawn
and in conlict with traditional siida boundaries. This resulted in internal conlicts and over-grazing, as the
traditional system for managing grazing resources and disputes was no longer functional, and individual
reindeer owners were forced to compete for scarce resources.
The reindeer husbandry Act of 2007 “reindriftsloven”, which replaces the reindeer
husbandry Act of 1978, re-introduces the siida as a signiicant legal entity. The amendment is based
on the recognition that the system of individual reindeer-herding licenses and the organization into
reindeer-herding districts do not work well with the
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traditional Sami reindeer husbandry economic and social system. Although, the system of licensing
and districts has been maintained, the siida has been given a prominent role in the organization and
management of Sami reindeer husbandry in Norway, as of 1 July 2007.
Case cited in: John Henriksen: Key Principles in Implementing ILO Convention No. 169, ILO, 2008;
Hætta, Odd Mathis Hætta: The Sami– Indigenous People of the Arctic, Davvi Girji OS, 2003.
New Caledonia: The Customary Senate The status of the Kanak
people, i.e. the indigenous people of New Caledonia, is regulated in
accordance with the 1998 Noumea Agreement signed between the French government and the
Kanak independence movement Front de Libération Nationale Kanak et Socialiste and the conservative
party Rassemblement Pour La Calédonie dans la République. In particular, the Noumea Agreement
provides for the establishment of the Customary Senate.
It is composed of 16 Kanak customary chiefs, who must be consulted on any issues
affecting Kanak identity. Noumea Accord, in Australian Indigenous Law
Reporter 17, 2002, p. 88 ff.
Colombia: Traditional Indigenous Authorities The Constitution of Colombia recognizes the special
jurisdiction of indigenous traditional authorities, exercised in accordance with their customs
within indigenous traditional territories, provided that it does not contradict the Constitution and
legislation of the State. The Constitution also recognizes indigenous territories as entities of public
administration at local level and establishes that such territorial entities will be governed by “their own
authorities”, whose constitution and functions are regulated by the customary law of each indigenous
community.
Complex social phenomena are at play in the Cauca region of Colombia. Such phenomena include the
presence of landowners with strong social and political clout; zero industrial development and
organisation of workers; a high percentage of poor indigenous peoples and peasants; and serious
issues with public order, characterised by the displacement and disappearance of people and
armed confrontations.
Faced with this situation, the seven indigenous groups in the Cauca Nasa, Guamiano, Totoró,
Yanacona, Inga, Kokonukos and Eperará Siapidara formed the Cauca Regional Indigenous Council
CRIC in 1971. One of its initial priorities was to recover and gain control of the territory, maintaining
the structure of “reservations and councils” which, although it originated in Spanish colonial times,
has become an institution for the recognition of all indigenous ancestral territories. Indigenous
councils are autonomous governance bodies in the territory. They carry out political, legal, health,
education, production and gender training and
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other programs. Among other matters, the Councils issue legislative documents called “Resolutions”,
many of which are related to the armed conlict, the presence of religious groups and drug trafickers,
and government policy as it relates to their territory. They also have peace corps that work to unify
the territory and recuperate those who have been kidnapped or recruited by the various armed groups.
Political participation has allowed them to win ofices in mayoralties and municipal councils. Indigenous
councils actively participated in discussions on the reform of the Political Constitution during the 1991
National Constituent Assembly and, in 1999, an agreement was signed with the government for the
comprehensive development of an indigenous policy. Constitution of Colombia: http:www.
secretariasenado.gov.coleyes Case prepared by Myrna Cunningham.
Nicaragua: The Communities of the Atlantic Coast.
Under Article 89 of the Constitution of Nicaragua, the communities of the Atlantic Coast, organized
in the two autonomous regions of RAAN and RAAS Autonomous Regions of the North and
South Atlantic, encompassing respectively the northern and southern parts of the Atlantic area,
are conferred the right to retain their own models of social organization and to manage local matters in
accordance with their own customs and traditions. The principles on which the Autonomy Law
was based were encapsulated in the Autonomy Commission’s proposals. It stated that:
Our political Constitution holds that Nicaragua is a multi-ethnic nation and recognises the right of
the Atlantic Coast Communities to preserve their cultural identity, their languages, art and culture,
as well as the right to use and enjoy the waters, forests and communal lands for their own beneit.
It also recognises their rights to the creation of special programs designed to contribute to their
development while respecting their right to live and organise themselves according to their legitimate
cultural and historical conditions.
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The main provisions in the law are outlined as follows: the setting up of autonomous regime for
the regions of the Atlantic Coast, within the unitary Nicaraguan state. The law speciically provides for
two autonomous regions to exercise jurisdiction over the indigenous peoples. Articles 1-6; although
Spanish is the oficial language of the Nicaraguan state, the languages of the communities of the
Atlantic Coast will be oficial within the autonomous regions. Art. 7
The Autonomy Law establishes that people who live in the autonomous regions have the right to
develop forms of social and productive organisation that adhere to their values and it establishes the
following organisational structure, which respects indigenous peoples’ traditional forms of organisation,
which have been expressed to other forms of government throughout history:
Regional Autonomous Council •
Regional Autonomous Government •
Territorial Assembly •
Community Assembly •
Other traditional forms of organisation include the Council of Elders Almuk Nani, a community-based
organisation dating back to pre-Colombian times. The Council is comprised of elders or respected
members of the community who are highly regarded and honoured in the indigenous society. Their roles
include:
political representation in internal governance •
and recognition of the chief of each community;
guiding communities towards absolute •
respect for spirits or religious beliefs, land tenure and the rational use of natural
resources; defending the indigenous identity through
• respect for traditions, social and legal norms
and rejecting acculturation and ethnocide; promoting further regional autonomy by
• pushing for effective participation at various
levels of government; encouraging initiatives focused on respect
• for and recognition of the indigenous
communities’ traditional and historical lands; providing conditions conducive to the
•
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integration and consolidation of customary law into the administrative legal system of the
Autonomous Region; developing relations with international
• agencies that foster indigenous solidarity in
the economic, political and cultural spheres. Article 4 of Law 445 on communal lands states
that “the communal assembly is the maximum authority in indigenous and ethnic communities.
This communal authority is responsible for legal representation of the communities…”. The same
article establishes that “the territorial authority is the maximum authority in the territory and is convened
according to the procedures established by the group of communities in the territory”.
Article 5 of Law 445 refers to communal authorities as traditional administrative governance institutions
that represents the community. Articles 11 and 15 of the same law establish that the municipality,
regional government and regional council must each respect the right of indigenous peoples and ethnic
communities to communal tenure of land and natural resources within their jurisdiction.
Case prepared by Myrna Cunningham. http:www.manfut.orgRAANley445.html
Guatemala: Indigenous authorities In Guatemala, there are authorities of the Mayan
World, such as the Ajqi’j or Mayan priests, healers and midwifes, whose services are determined by
the Maya calendar. These are not recognised by the State. The Municipal Law of 2002 recognises
indigenous peoples’ communities as legal entities Article 20 and indigenous municipalities, where
these still exist Article 55. Even more important is the recognition of auxiliary mayors, also called
communal mayors, as representatives of the communities Article 56 and not as delegates of
the Government. Therefore, and as stipulated in the Peace Accords, the communal mayors can
be elected by the communities instead of being designated by the municipal mayor. The communal
mayors are intermediaries between the municipality and the communities.
Case prepared by Myrna Cunningham http:www.ops.org.gtdocbas
v. PARTICIPATION,
CONSULTATION AND CONSENT
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5.1. CONSULTATION AND PARTICIPATION: THE CORNERSTONE Of THE CONVENTION
