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Mrs Ksentini's final report included conclusions and recommendations, and her proposal for draft principles on human rights and the environment addresses in some detail issues relating to Indigenous peoples and the environment.
Extracts are reproduced below.
74. 'This we know, the Earth does not belong to man; man belongs to the Earth. This we know, all things are connected, like the blood which unites one family. Whatever befalls the Earth, befalls the sons of the Earth. Man does not weave the thread of life; he is merely a strand in it. Whatever he does to the web he does to himself.' This letter from Chief Seattle, Patriarch of the Duwamish and Squamish Indians of Puget Sound to United States President Franklin Pierce (1855) underlines the specific relationship of indigenous peoples to the land.
75. The Special Rapporteur considers the issue of indigenous peoples' rights and the environment of such importance that it warrants attention in her final report. The human rights problems facing indigenous peoples due to environmental factors are rapidly increasing. The number of communications received, the seriousness of the many situations presented, and the need for a multifaceted approach militate in favour of attention being paid to this issue. In this light, the Special Rapporteur has welcomed the interest of the Sub-Commission on Prevention of Discrimination and Protection of Minorities which, in paragraph 2 of its resolution 1990/27 of 31 August 1990, invited the Special Rapporteur 'to take into account the special relationship between fragile habitats and indigenous peoples, especially with regard to sustainability'. The Commission on Human Rights, in its resolution 1991/44 of 5 March 1991, requested the Secretary-General to invite indigenous peoples and their organisations to provide the Special Rapporteur with information for this study.
76. The Special Rapporteur presented an introductory discussion of indigenous peoples' rights and the environment in her Note, in her preliminary report, in her first progress report, and in her second progress report. [1] She received useful information at meetings with indigenous leaders that took place in New York and San Francisco in 1991 and in Rio de Janeiro in conjunction with the Global Forum at the United Nations Conference on Environment and Development in 1992. She also has received numerous communications from indigenous peoples and their organisations throughout the period of the study and has reviewed a wide range of materials from other non-governmental organisations and from United Nations and other sources.
77. As indigenous representatives have pointed out to the Special Rapporteur, international, regional and national action taken by indigenous peoples and their organisations to promote and protect their rights have always focused on the need of indigenous peoples to protect their traditional territories. This is because removal from or destruction or degradation of traditional lands inevitably leads to serious loss of life and health and damage to the cultural integrity of indigenous peoples. Describing his people's relationship to the land, in 1885 Chief Seattle stated:
'My people venerate each corner of this land, each shining pine needle, each sandy beach, each wreath of mist in the dark woods, each glade, each humming insect; in the thought and practice of my people, all these things are sacred. The sap rising in the tree carries the memory of the red man.' [2]
78. Echoing Chief Seattle, one Indian leader stated to the Working Group on Indigenous Populations at its 1985 session:
'Our principal and fundamental struggle is for the land, our territory and natural resources ... Our defence of the land and natural resources is for the cultural and human survival of our children ... For us, the first thing is to secure our land, which belongs to us by right, because we are the true owners of the land and natural resources. We indigenous peoples know that without land there can be no education, there can be no health and there can be no life.' [3]
79. Experts in the field have been particularly critical of large-scale development schemes in Indian lands, as reflected in the background papers submitted at the United Nations Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States (Geneva, 16û20 January 1989). In one background paper, Professor Rodolfo Stavenhagen writes:
'Much damage has been done to the indigenous peoples through economic development projects ... The isolated, marginal areas often occupied by indigenous peoples constitute the last great and, until recently, unexploited reserves of natural resources. Neither State planners nor multinational corporations nor international development agencies have hesitated to 'incorporate' these areas into the national and international economy. In the process, indigenous peoples have suffered genocide and ethnocide.' [4]
80. Another expert, Professor Vitit Muntarbhorn, writes:
'[Cultural] disintegration is compounded by destruction of the ecology and habitat upon which indigenous groups depend for their physical and cultural survival. Deforestation, particularly of rain forests, and pollution introduced by outsiders jeopardise the modus vivendi of indigenous groups. The social nexus binding members of the group to the environment is thus annihilated.' [5]
81. In part as a reflection on the comments of the experts at the 1989 seminar, the issue of indigenous peoples was addressed at the 1990 Global Consultation on the Realisation of the Right to Development. Once again, the assessment of the environmental factors of human rights and indigenous peoples was harsh:
'The experience of indigenous peoples and development clearly demonstrated that human rights and development are inseparable, for the abuse of the rights of indigenous peoples is principally a development issue. Forced development has deprived them of their human rights, in particular the right to life and the right to their own means of subsistence, two of the most fundamental of human rights. Indigenous peoples have been, in fact, victims of development policies which deprive them of their economic base - land and resources - and they are almost never the beneficiaries. 'It was underlined that the most destructive and prevalent abuses of indigenous rights are a direct consequence of development strategies that fail to respect the fundamental right of self-determination. Using illustrations, participants described how indigenous peoples are routinely perceived as obstacles to development and excluded from decision-making in matters that affect them. The result has been the elimination and degradation of the indigenous land base; destruction, degradation and removal of natural resources, water, wildlife, forests and food supplies from indigenous lands either through commercial exploitation or incompatible land use, the degradation of the natural environment; removal of indigenous peoples from their lands; and their displacement or pre-emption from the use of their lands by outsiders.' [6]
82. The relationship between environmental concerns, development and the rights of indigenous peoples was also addressed at the 1992 United Nations Conference on Environment and Development and at the 1993 United Nations Conference on Human Rights. It was also a prominent feature in issues addressed in conjunction with the 1993 International Year for the World's Indigenous People.
83. The United Nations and its specialised agencies have long been concerned with the human rights of indigenous peoples. International action to safeguard the rights of indigenous peoples has increasingly focused on the land and environmental issues. For example, in 1957 ILO promulgated the Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (No 107). This Convention was revised by the Convention concerning Indigenous and Tribal Peoples in Independent Countries, (1989 No 169), primarily to address the land rights issue. These two Conventions are the only international treaties specifically concerning indigenous peoples, although a number of indigenous groups signed treaties with Governments during the period of penetration of indigenous lands. [7]
84. The revised Convention shows the influence of indigenous peoples and their organisations in its new emphasis on land and the vital importance of land to indigenous peoples. Convention No 169 represents substantial progress at the international level. Article 4 requiring special measures to protect the environment of indigenous peoples is especially important. This mandate is reinforced by article 7, which requires the direct participation of indigenous peoples and environmental impact studies prior to any development schemes in their territories. Part II (arts 13-19) of the Convention specifically addresses land; article 13 recognises the 'special importance for the cultures and spiritual values' of their land; article 14 recognises land ownership rights; article 15 recognises the right to resources of their own lands; article 16 protects indigenous peoples from unlawful relocation from their lands; article 17 provides for procedures for redress, including the requirement that Governments prevent indigenous people from being deprived of their land by unscrupulous acts; article 18 requires penalties for land violations; article 19 requires provision of adequate land to enable indigenous peoples to live and increase normally.
85. ILO has a well-developed enforcement process by which indigenous peoples could seek remedies for the violation of the Convention. Regrettably, few Governments have ratified Convention No 169 and there is no public information regarding complaints that are lodged. Additional ratifications will provide increased access to the ILO dispute-resolution mechanisms, including a procedure by which individuals may petition the ILO Governing Body through recognised representative organisations. Under other ILO procedures, organisations may call the matter to the attention of ILO in the form of a 'representation'. Or the ILO Governing Body may open a complaint on its own motion or at the insistence of a delegate to the International Labour Conference. Both representations and complaints are investigated, and the results may be published if the situation is not corrected. [8]
86. The study of racial discrimination, begun by the Special Rapporteur of the Sub-Commission, Mr Hernan Santa Cruz, in 1965, contained a chapter on indigenous peoples. [9] The Special Rapporteur's suggestion that the United Nations study the situation of indigenous peoples in a comprehensive fashion led to the appointment in 1971 by the Sub-Commission of Mr JosT Martfnez Cobo to carry out such a study. His report [10] contains much discussion about indigenous peoples and their land. In 1981, the Sub-Commission proposed the establishment of the Working Group on Indigenous Populations, which met for the first time in 1982. The Working Group has prepared a draft declaration on indigenous rights, which is still under consideration by the Working Group. Throughout the drafting period, indigenous land rights and environmental concerns have been the most keenly contested, with indigenous organisations insistent that any formulation of their rights must firmly protect their lands from exploitation and ecological degradation. Their concern is clearly reflected in the 1992 draft as contained in the report of the Working Group on its tenth session, [11] especially in operative paragraphs 17-20 and 38 which the Special Rapporteur set out in her second progress report. [12]
87. As a further reflection of serious concerns about indigenous peoples, human rights and the environment, in 1992 the United Nations sponsored the United Nations Technical Conference on Practical Experiences in the Realisation of Sustainable and Environmentally Sound Self-development of Indigenous Peoples. The report and the background papers [13] provide an analysis of the impact of ecological devastation on indigenous peoples and their struggle to protect their land and its resources, and to develop their economies in an ecologically sustainable fashion that does not jeopardise traditional ways.
88. In her review of cases brought to the Human Rights Committee and to the Inter-American Commission on Human Rights by or on behalf of indigenous peoples, the Special Rapporteur is impressed by the fact that the human rights violations at issue almost always arise as a consequence of land rights violations and environmental degradation and indeed are inseparable from these factors. In her progress report [14] the Special Rapporteur described Communication No 167/1984 addressed to the Human Rights Committee by Chief Ominayak and the Lubicon Lake Band of Canada involving the threat to the lives and traditional ways and culture of the Band posed by oil and gas exploitation. The Human Rights Committee found violations of article 27 (minority/cultural rights) of the International Covenant on Civil and Political Rights in that case. [15]
89. At the Inter-American Commission on Human Rights the two cases already presented by the Special Rapporteur - the Yanomani case in Brazil [16] and the Huaorani case in Ecuador [17] raise questions concerning violations of the right to life, the right to health, the right to the promotion and protection of indigenous peoples' culture caused by development projects in their traditional territories. Other cases reviewed by the Inter-American Commission include the Guahibo Indians of Colombia, the Ache and Toba-Maskoy of Paraguay, the Miskito of Nicaragua, the Mayan of Guatemala, the Inuit and Athabascan of Alaska, the Kanaka Maoli of Hawaii. The Inter-American Commission has also raised Indian human rights issues in reports of States parties to the American Convention on Human Rights, [18] involving the human rights consequences of displacement from and/or degradation of traditional indigenous lands.
90. The Inter-American Commission, in its Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, [19] analysed relocation of indigenous peoples from their traditional lands from the point of view of human rights. The Commission found that involuntary relocation of indigenous peoples could be justified only under article 27 of the American Convention which allows for derogation of rights 'in time of war, public danger, or other emergency that threatens the independence or security of a State party'. The Inter-American Commission reiterated that the danger must be extremely serious. However, involuntary relocation under these circumstances 'should not outlive the emergency, and termination of the emergency should allow the return of the civilian populace to their original region'. [20] The Inter-American Commission asserted that relocation for lesser national goals, such as economic development, do not meet article 27 criteria, and may not be undertaken involuntarily. [21]
91. National courts are also increasingly being presented with indigenous human rights issues. Here too, the preponderance of cases involve indigenous lands and subsistence rights being effected by confiscation, degradation, inappropriate development or inappropriate regulation. In her second progress report, the Special Rapporteur described the Organizaci=n Indfgena de Antioquia v. Codechoco y Madarien, [22] in which the court emphasized that the destruction of the forest lands of indigenous peoples places their lives and cultures in danger. In this regard the Special Rapporteur would also like to note that Regina v. Sparrow, [23] the Canadian Supreme Court in 1990 upheld the fishing rights of Canadian indigenous peoples. In holding that Canada must be held to a 'high standard of honourable dealing', the Court emphasised that the rights of indigenous peoples 'must be interpreted flexibly to permit their evolution over time.'
92. The Special Rapporteur notes with interest initiatives by indigenous peoples themselves to encourage indigenous self-development. The 1992 United Nations Technical Conference referred to above produced a wide array of useful strategies, many of them currently employed by indigenous people.
Recent sessions of the Inter-Commission Task Force on Indigenous Peoples of the IUCN World Conservation Union, at which indigenous leaders and others exchanged information and presented case studies on indigenous sustainable development, [24] are also encouraging developments. The Special Rapporteur is please by the increasing cooperation between indigenous peoples and their organisations and environmental organisations which should enhance the abilities of indigenous peoples to preserve their territories from ecological destruction.
93. In spite of some encouraging events, the Special Rapporteur is aware that existing efforts to protect indigenous peoples' rights and their fragile habitat have been inadequate. The situation of indigenous peoples, especially as it relates to human rights and the environment, is at a critical point. No one single solution can hope to address the multifaceted problems. None the less, she is aware that alternatives to large-scale development schemes, with their potentially destructive consequences, exist.
94. These alternatives must be encouraged. Indigenous peoples must genuinely participate in all decision-making regarding their lands and resources. The international community, in particular the United Nations and regional monitoring procedures, must respond accordingly.
...
...
248. Environmental damage has direct effects on the enjoyment of a series of human rights, such as the right to life, to health, to a satisfactory standard of living, to sufficient food, to housing, to education, to work, to culture, to non-discrimination, to dignity and the harmonious development of one's personality, to security of person and family, to development, to peace, etc.
249. In this context, it should be stressed how vulnerable certain peoples, populations, groups or categories of persons are to ecological hazards and natural disasters whether caused by man or generated by a state of war and conflict. The Special Rapporteur has pointed out that the poor and disadvantaged, minority groups, women, children, migrant workers and their families, refugees and displaced persons are generally those most affected and least protected. The transfer of toxic substances and waste to the developing countries also gives cause for serious concern.
250. The Special Rapporteur noted indigenous peoples' special ties with the land and the environment, and their particular vulnerability to ecological hazards. She stresses the need for effective protection of their rights and calls for the rapid adoption of the draft declaration finalised by the Working Group on Indigenous Populations.
...
13. Everyone has the right to benefit equitably from the conservation and sustainable use of nature and natural resources for cultural, ecological, education, health, livelihood, recreational, spiritual and other purposes. This includes ecologically sound access to nature.
Everyone has the right to preservation of unique sites consistent with the fundamental rights of persons or groups living in the area.
14. Indigenous peoples have the right to control their lands, territories and natural resources and to maintain their traditional way of life. This includes the right to security in the enjoyment of their means of subsistence.
Indigenous peoples have the right to protection against any action or course of conduct that may result in the destruction or degradation of their territories, including land, air, water, sea-ice, wildlife or other resources.
Endnotes
[1] E/CN.4/Sub.2/1990/12, para. 33 and note 9; E/CN.4/Sub.2/1991/8, paras. 23-30; E/CN.4/Sub.2/1992/7, paras. 19, 94-95, 99; E/CN.4/Sub.2/1992/7/Add.1; E/CN.4/Sub. 2/1993/7, paras. 29-32, 69, 89-90, 126.
[2] Cited in Mario Ibarra, 'Traditional practices in respect of the sustainable and environmentally sound self-development of indigenous people' (E/CN. 4/Sub. 2/1992/31/Add.1), para. 94.
[3] J. Uranavi, Statement on behalf of the International Work Group for Indigenous Affairs, 1985.
[4] E/CN. 4/1989/22, annex III C, para. 3.
[5] Ibid, annex III A, pp. 27-28.
[6] The realization of the right to development, Global Consultation on the Right to Development as a Human Right, United Nations publication, (HR/PUB/91/2).
[7] The subject of treaties, arguments and other constructive arrangements between State and indigenous populations is now under review by the Sub-Commission and its Special Rapporteur, Mr Miguel Alfonso Martinez.
[8] International Labor Office Fact Sheet, International Labor Standards, Washington Branch, January 1991.
[9] Hernan Santa Cruz, Racial Discrimination, United Nations publication, Sales No E.71.XIV.2, 1971.
[10]
JosT Martfnez Cobo, 'Study of the problem of discrimination against
indigenous populations' (E/CN. 4/Sub.2/1986/7 and Add.
1-4). Addendum 4
containing the conclusions and recommendations, issued as a United Nations
publication, Sales No E.86.XIV.3.
[11] E/CN. 4/Sub.2/1992/33, annex I.
[12] E/CN.4/Sub.2/1993/7, para. 89.
[13] E/CN.4/Sub.2/1992/31 and Add 1.
[14] E/CN.4/Sub.2/1992/7.
[15] Report of the Human Rights Committee (A/45/40), vol II, annex IX A.
[16] Case 7615 of 5 March 1985, in the annual report of the Inter-American Commission on Human Rights, 1984-1985 (OEA/Ser.L/V/II.66, doc 10 rev.1), referred to by the Special Rapporteur in E/CN. 4/Sub.2/1992/7, para 94 and E/CN. 4/Sub.2/1993/7, para. 69.
[17] Confederaci=n de Nacionalidades Indfgenas de la Amozonia Ecuatoriana, petition failed 25 June 1990 and now subject of in situ investigation by the Inter-American Commission, referred to by the Special Rapporteur in E/CN. 4/Sub.2/1992/7, para. 95 and E/CN. 4/Sub.2/1993/7, para. 69.
[18] Organisation of American States, Treaty Series 36.
[19] OEA/Ser.L/V/II.62/doc.10 rev 3 of 29 November 1983 and OEA/Ser.L/V/II.62/doc 26 of 16 May 1994.
[20] Inter-American Comission, ibid, pp. 112-118.
21. Ibid.
[22] Decision of the Third Agrarian Court of the District of Antioquia, Colombia (24 February 1993).
[23] Supreme Court Reports of 31 May 1990.
[24] Reports of a 1994 session in New Mexico, USA, and a 1993 session in Gland, Switzerland, are available from the IUCN World Conservation Union.
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