CHAPTER IV

 

AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES.  THE

            PROCESS OF PREPARATION,  REGIONAL CONSULTATION AND PROPOSAL OF

                             THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

 

 

          At its 95th Regular Session, the Inter-American Commission on Human Rights approved the proposed American Declaration on the Rights of Indigenous Peoples, pursuant to a recommendation of the General Assembly to that end (AG/RES. 1022 (XIX-0/89)[1].  This proposal includes suggestions and comments from the governments, indigenous and intergovernmental organizations, experts, and special meetings of consultation that were held between October of 1995 and February of 1997, based on a draft consultation approved by the IACHR at its 90th Regular Session.  It takes also in account the work being done by the United Nations (AG/RES. 1404 (XXVI-O/96).

 

          As specified in Recommendation 8 of Chapter VII in this Annual Report, this proposal is being submitted to the General Assembly and to its  Permanent Council, and it is being made public by the Commission so that it can be considered at the next General Assembly and, in detail, by the governments, peoples and interested organizations, so that it can be approved by the member countries at the 1998 General Assembly, in commemoration of the Organization's 50th anniversary.

 

            BACKGROUND

 

    In October of 1995, the Commission embarked on a broad round of consultations[2] concerning the questionnaire which it had drawn up and approved at that time, based on previous consultations, national constitutions and legislation, international instruments and statements on this subject.  The questionnaire was widely circulated to governments and to hundreds of indigenous organizations, experts and other entities which were asked to present their comments.  The text was also disseminated by news media.

 

          A number of different mechanisms were used for the purpose of this consultation: a) direct consultation by correspondence, as noted above; b) presentation and discussion of the questionnaire at specialized technical meetings;  c) consultation of indigenous population at a national and multinational level; and d) regional meetings. 

 

            TECHNICAL MEETINGS

 

          The draft was presented and examined at various technical meetings: in Arequipa, Peru, at the "First World Meeting of Indigenous Peoples" which was organized by the World Council of Indigenous Peoples in October of 1955; in Ottawa at the "Widening the Circle" on February 27, 1996, meeting organized by FOCAL, the University of Ottawa and the World Council of Indigenous Peoples, attended by more than 100 delegates from the entire Hemisphere; in Guatemala City, organized by the Inter-American Institute of Human Rights in March of 1996; at the General Kuna Congress in Ogubscun, Panama, in 1996; and at the 1996 Sovereignty Symposium, held in Tulsa, Oklahoma.

 

            NATIONAL AND REGIONAL CONSULTATIONS

 

          For the national and regional consultations, the IACHR acted as coordinator, with assistance from the Inter-American Indian Institute; the Unit for the Promotion of Democracy; the Inter-American Institute of Human Rights; and the Inter-American Fund for the Development of Indigenous Peoples (whose headquarters are in Bolivia) and with cooperation from the Inter-American Development Bank.

         

          The following national consultations were held:

 

            ARGENTINA

 

          Organization Responsible:  ORIANA (The Andean Indigenous Regional Organization of Northern Argentina).  Coverage: Nationwide.  The participants consisted of fourteen delegates, who represented the country's eighteen indigenous peoples.  Held in Buenos Aires, from October 20 through October 23, 1996.

 

            BOLIVIA

 

          Two parallel consultations took place.  I. Organizations Responsible: CIDOB (Organizations of the Lowlands) and SUTCB (Organizations of the Highlands).  They were sponsored by the National Secretariat on Ethnic Matters, which published the IACHR Draft Survey in newspapers to ensure the widest possible dissemination.  The results of the consultation were endorsed by the National Government.  Coverage: Nationwide.  Two workshops were held, one in the city of Santa Cruz for the Oriente, Chaco and Amazonia region and the other in Oruro for the Andean region.  II. Organization Responsible: the Indigenous Parliament of Bolivia (the  Honorable Chamber of Deputies).

Coverage: The consultation was attended by ten indigenous deputies to the National Parliament of Bolivia.

 

            BRAZIL

 

          Organization Responsible: CAPOIB (Joint Council of Indigenous Peoples and Organizations in Brazil).  Coverage: Nationwide.  The participants included directors of the organizations most directly involved in COIAB, COR, UNI, AC and CAPOIB, in addition to the legal counsel of the two last-named.  Held in Brasilia in October of 1996.

 

            COLOMBIA

 

          Organization Responsible: ONIC (National Indigenous Organization of Colombia).

Coverage: Nationwide.  Held in Bogota in October of 1996.

 

            COSTA RICA

 

          Took place in San Jose, on 11-14 December, 1996, organized by the "National Indigenous Round Table" -affiliated with CICA.  In the process two regional meetings, two national meetings and some local meetings were completed.

 

            CHILE

 

          Organization Responsible: The representative of the indigenous peoples of Chile to the Fund.  Coverage: Two consultations were held, one among the Aymaras peoples and the other among the Atacameño (in the northern part of Chile).

 

            ECUADOR

 

          Organization Responsible: the Secretariat of Ethnic Affairs and a commission, consisting of an equal number of representatives from the indigenous and the Afro-Ecuadorian peoples.  Coverage: Nationwide.  A three-day national seminar was held in Quito from October 7 through October 9, 1996.

 

            EL SALVADOR

 

          A Workshop Seminar was organized by the "Indigenous Round Table" of El Salvador, with Indian representatives from all the country, in December 1996.

 

            HONDURAS

 

          Held in "Ruinas de Copán" on November 9 and 10, 1996 by the Confederation of Auctochtonous Peoples of Honduras CONPAH, with approximately 100 delegates from the Miskito, Garifuna, Pech, Talupanes O-Xroquaz, Incas, Black anglophones, and Chortis.

 

            MEXICO

 

          Direct consultations and a Workshop Seminar in Tuxtepec, Oaxaca, on December 7 and 8, 1996, with 19 delegates of 15 national and regional organizations.

            PANAMA

 

          Organization Responsible: COONAPIP (National Coordination Office for the Indigenous Peoples of Panama).  Coverage: Nationwide, representing the Ngobe-Bugle, the Kuna of Mandugandi, the Embera Wounan and the Kuna Takarkunyala.

 

            PARAGUAY

 

          Organizations responsible: Fifteen indigenous organizations of Paraguay. Coverage: Nationwide.  The participants were the heads of the 15 organizations.  The meeting took place in the city of Benjamin Aceval, on November 15, 1996.

 

            PERU

 

          Organizations Responsible: UNCA (Union of Aymara Communities) and CAH (the Aguaruna Huambisa Council).  Coverage: Nationwide.  Six national agencies were convened (AIDESEP, CONAP, CNA, CCP, COICAP, and the Andean Council of Coca Leaf Producers) along with regional organizations from the whole country. The participants were 26 national-level leaders.  The seminar was held in Lima, in November of 1996.

 

            CANADA AND THE UNITED STATES

 

          In addition to the presentation at the various technical meetings cited above, answers were received from centers that represent indigenous rights, and a meeting was sponsored by the Center for Energy Resources Tribes (U.S.A.) and the International Organization of Indigenous Resources Development (IORD) and the Grand Council of the Crees (Canada) was held in Denver, Colorado, at which a revised text was prepared with the help of representatives of 140 indigenous peoples of North America.  This version was then approved by acclamation by the Grand Council of the Crees and the Hobemas, and thereafter presented at the Conference on Amerindian peoples organized by UNESCO in Paris, in June of 1996.

 

            MULTINATIONAL MEETINGS

 

          Consejo Nacional de Centro América (CICA).  Meeting in Guatemala City, on October 18, 1996.

          Coordinadora de Pueblos Indígenas de la Cuenca Amazónica (COICA).  Held a special meeting on October 1-4, 1996 in Quito, with 11 representatives of CONFENIAE (Ecuador), OPIAC (Colombia), COIAB (Brazil), APA (Guyana), OIS (Suriname) and COICA (Peru).

 

            REGIONAL MEETINGS

 

          The regional meetings for South America in Quito, Ecuador; and those for Central America and the Caribbean, in Guatemala City were held in November of 1996.  The  delegates of the national consultations and other experts and representatives of governments presented the results of their surveys and discussed the preparation procedures.

 

          I.        Regional Meeting for Central America and the Caribbean

 

          Site: the Central American Parliament in Guatemala City, November 14-16, 1996.  Government sponsor:  the Ministry of Culture and Sports.  Participants: 67 persons, 28 of whom were representatives of indigenous organizations in Guatemala; 17 were representatives of indigenous organizations in El Salvador, Honduras, Nicaragua, Panama, Belize and Suriname; 6 represented the Governments of Belize, Canada, Guatemala and Mexico; and 16 were representatives and/or experts from Minugua, Flacso, the UNDP, the I.I.I., the IIDH and the Central American Parliament.  Delegates from the IACHR, the I.I.I., the UPD, the Indigenous Fund, and Guatemala's Ministry of Culture and Sports also took part.

 

          II.       Regional Meeting of Consultation for South America

 

          Site: Hotel Quito, in Quito, Ecuador.  November 21-23, 1996.  Government Sponsor:  the Secretariat of Ethnic Affairs at the Ministry of Indigenous Affairs. Participants: 165 in number, 77 of whom were indigenous and Afro-Ecuadorean representatives and 20 were indigenous representatives from Argentina, Bolivia, Chile, Colombia, Paraguay and Peru; 19 were diplomatic and technical representatives accredited to the meeting by the Governments of Argentina, Bolivia (the Undersecretary of Technical Affairs), Brazil, Chile, Colombia, Ecuador, Peru and Uruguay; and four were executive staff of regional organizations (COICA, the World Council on Indigenous Peoples and the IIDH).  Officials from the IACHR, the UPD and the I.I.I. also took part.

 

          In Mexico City in December, the Inter-American Indigenous Institute held the First Indigenous Forum of the Americas, in the presence of eighteen indigenous leaders from the region.  The Forum's main objective was to discuss the inter-American instrument on indigenous rights.  The Forum supported the initiative and recommended that the range of consultation be broadened.

 

            COMMENTS FROM GOVERNMENTS

 

          Comments were received from the Governments of Argentina, Brazil, Canada, the United States, Honduras, El Salvador, Mexico, and Venezuela.  The Government of Bolivia endorsed the observations of the national consultation.

 

            COMMENTS FROM INSTITUTIONS AND EXPERTS

 

          Responses and comments were also received from the International Labor Organization (ILO) and from the United Nations Mission in Guatemala (Minugua).  Also from the Indian Law Resource Center (USA); the Inter-American Dialogue, the Child Rights International Research Institute, the International Indian Treaty Council (US), of Hutchins, Soroka, Dionne (Ottawa, Canada).  From experts: Augusto Willemsen Díaz (of Guatemala), Aureliano Turpo Choquehuanca (World Council on Indigenous Peoples), Professor Fernand de Varennes (Murdoch University, Australia); Prof. Joe Palacio (UWI, Belice), and Hugo Mondragón (Colombia). 

 

            IACHR TECHNICAL REVIEW MEETING

 

          Taking into account all of the responses and conclusions of the meetings, in January of 1997, the IACHR held a Technical Meeting to review the draft text of the questionnaire and to propose a revised version, for consideration by the IACHR at its 95th Regular Session.  The participants at the meeting included rapporteur members Dr. Carlos Ayala Corao and Ambassador John Donaldson, and the contract experts Dr. Magdalena Gómez Rivera (Director of Legal Prosecution at the National Indigenous Institute of Mexico); Dr. Patrick Robinson (a former member of the Commission and rapporteur on the topic); and Wilton Littlechild, Q.C. (indigenous lawyer and member of the Canadian Parliament), with the collaboration of IACHR principal specialist lawyer, Dr. Osvaldo Kreimer.

 

            THE COMMISSION'S PROPOSAL

 

          The Commission approved the text which is transcribed as the proposed American Declaration on the Rights of Indigenous Peoples, to be presented to the General Assembly in response to the recommendation contained in resolution AG/RES. 1022 (XIX-O/89).  The IACHR also proposes that the General Assembly, when it considers the Declaration at its June 1997 meeting, conduct the consultations and adopt the measures necessary to approve the declaration at its annual session in 1998, to commemorate the 50th Anniversary of the Organization.

                                      PROPOSED AMERICAN DECLARATION ON THE

                                                RIGHTS OF INDIGENOUS PEOPLES

 

          (Approved by the Inter-American Commission on Human Rights on February 26,

                             1997, at its 1333rd session, 95th Regular Session)

 

 

          PREAMBLE

 

          1.       Indigenous institutions and the strengthening of nations

 

          The member states of the OAS (hereafter the states),

 

          Recalling that the indigenous peoples of the Americas constitute an organized, distinctive and integral segment of their population and are entitled to be part of the national identities of the countries of the Americas, and have a special role to play in strengthening the institutions of the state and in establishing national unity based on democratic principles; and,

 

          Further recalling that some of the democratic institutions and concepts embodied in the constitutions of American states originate from institutions of the indigenous peoples, and that in many instances their present participatory systems for decision-making and for authority contribute to improving democracies in the Americas.

 

          Recalling the need to develop their national juridical systems to consolidate the pluricultural nature of our societies.

 

          2.       Eradication of poverty and the right to development

 

          Concerned about the frequent deprivation afflicting indigenous peoples of their human rights and fundamental freedoms; within and outside their communities, as well as the dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own traditions, needs and interests.

 

          Recognizing the severe impoverishment afflicting indigenous peoples in several regions of the Hemisphere and that their living conditions are generally deplorable.

 

          And recalling that in the Declaration of Principles issued by the Summit of the Americas in December 1994, the heads of state and governments declared that in observance of the International Decade of the World's Indigenous People, they will focus their energies on improving the exercise of democratic rights and the access to social services by indigenous peoples and their communities. 

          3.       Indigenous culture and ecology

 

          Recognizing the respect for the environment accorded by the cultures of indigenous peoples of the Americas, and considering the special relationship between the indigenous peoples and the environment, lands, resources and territories on which they live and their natural resources.

 

          4.       Harmonious relations, respect and the absence of discrimination

 

          Reaffirming the responsibility of all states and peoples of the Americas to end racism and racial discrimination, with a view to establishing harmonious relations and respect among all peoples.

 

          5.       Territories and indigenous survival

 

          Recognizing that in many indigenous cultures, traditional collective systems for control and use of land, territory and resources, including bodies of water and coastal areas, are a necessary condition for their survival, social organization, development and their individual and collective well-being; and that the form of such control and ownership is varied and distinctive and does not necessarily coincide with the systems protected by the domestic laws of the states in which they live.

 

          6.       Security and indigenous areas

 

          Reaffirming that the armed forces in indigenous areas shall restrict themselves to the performance of their functions and shall not be the cause of abuses or violations of the rights of indigenous peoples.

 

          7.       Human rights instruments and other advances in international law

 

          Recognizing the paramouncy and applicability to the states and peoples of the Americas of the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights and other human rights instruments of inter-American and international law; and

 

          Recognizing that indigenous peoples are a subject of international law, and mindful of the progress achieved by the states and indigenous organizations, especially in the sphere of the United Nations and the International Labor Organization, in several international instruments, particularly in the ILO Convention 169.

 

          Affirming the principle of the universality and indivisibility of human rights, and the application of international human rights to all individuals.

 

 

          8.       Enjoyment of Collective Rights

 

          Recalling the international recognition of rights that can only be enjoyed when exercised collectively.

 

          9.       Advances in the provisions of national instruments

 

          Noting the constitutional, legislative and jurisprudential advances  achieved in the Americas in guaranteeing the rights and institutions of indigenous peoples,

 

          DECLARE:

 

            SECTION ONE. INDIGENOUS PEOPLES

 

          Article I.        Scope and definitions

 

         1.       This Declaration applies to indigenous peoples as well as peoples whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.

 

         2.       Self identification as indigenous shall be regarded as a fundamental criterion for determining the peoples to which the provisions of this Declaration apply. 

         3.       The use of the term "peoples" in this Instrument shall not be construed as having any implication with respect to any other rights that might be attached to that term in international law.

 

            SECTION TWO.  HUMAN RIGHTS

 

         Article II.      Full observance of human rights

 

         1.       Indigenous peoples have the right to the full and effective enjoyment of the human rights and fundamental freedoms recognized in the Charter of the OAS, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, and other international human rights law; and nothing in this Declaration shall be construed as in any way limiting or denying those rights or authorizing any action not in accordance with the instruments of international law including human rights law.

 

         2.       Indigenous peoples have the collective rights that are  indispensable to the enjoyment of the individual human rights of their members.  Accordingly the states recognize inter alia the right of the indigenous peoples to collective action, to their cultures, to profess and practice their spiritual beliefs, and to use their languages.

 

          3.       The states shall ensure for indigenous peoples the full exercise of all rights, and shall adopt in accordance with their constitutional processes such legislative or other measures as may  be necessary to give effect to the rights recognized in this Declaration.

 

 

          Article III.      Right to belong to indigenous peoples

 

          Indigenous peoples and communities have the right to belong to indigenous peoples, in accordance with the traditions and customs of the peoples or nation concerned.

 

 

          Article IV.      Legal status of communities

 

          Indigenous peoples have the right to have their legal personality fully recognized by the states within their systems.

 

 

          Article V.       No forced assimilation

 

          1.       Indigenous peoples have the right to freely preserve, express and develop their cultural identity in all its aspects, free of any attempt at assimilation.

 

          2.       The states shall not undertake, support or favour any policy of artificial or enforced assimilation of indigenous peoples, destruction of a culture or the possibility of the extermination of any indigenous peoples.

 

 

          Article VI.      Special guarantees against discrimination

 

          1.       Indigenous peoples have the right to special guarantees against discrimination that may have to be instituted to fully enjoy internationally and nationally‑recognized human rights; as well as measures necessary to enable indigenous women, men and children to exercise, without any discrimination, civil, political, economic, social, cultural and spiritual rights.  The states recognize that violence exerted against persons because of their gender and age prevents and nullifies the exercise of those rights.

 

          2.       Indigenous peoples have the right to fully participate in the prescription of such guarantees.

 

 

             SECTION THREE.  CULTURAL DEVELOPMENT

 

          Article VII.     Right to Cultural integrity

 

          1.       Indigenous peoples have the right to their cultural integrity, and their historical and archeological heritage, which are important both for their survival as well as for the identity of their members.

 

          2.       Indigenous peoples are entitled to restitution in respect of the property of which they have been dispossessed, and where that is not possible, compensation on a basis not less favorable than the standard of international law.

 

          3.       The states shall recognize and respect indigenous ways of life, customs, traditions, forms of social, economic and political organization, institutions, practices, beliefs and values, use of dress, and languages.

 

          Article VIII.    Philosophy, outlook and language

 

          1.       Indigenous peoples have the right to indigenous languages, philosophy and outlook as a component of national and universal culture, and as such, shall respect them and facilitate their dissemination.

 

          2.       The states shall take measures and ensure that broadcast radio and television programs are broadcast in the indigenous languages in the regions where there is a strong indigenous presence, and to support the creation of indigenous radio stations and other media.

 

          3.       The states shall take effective measures to enable indigenous peoples to understand administrative, legal and political rules and procedures, and to be understood in relation to these matters. In areas where indigenous languages are predominant, states shall endeavor to establish the pertinent languages as official languages and to give them the same status that is given to non‑indigenous official languages.

 

          4.       Indigenous peoples have the right to use their indigenous names, and to have the states recognize them as such.

 

          Article IX.      Education

 

          1.       Indigenous peoples shall be entitled: a) to establish and set in motion their own educational programs, institutions and facilities; b) to prepare and implement their own educational plans, programs, curricula and materials; c) to train, educate and accredit their teachers and administrators.  The states shall endeavor to ensure that such systems guarantee equal educational and teaching opportunities for the entire population and complementarity with national educational systems.

 

          2.       When indigenous peoples so decide, educational systems shall be conducted in the indigenous languages and incorporate indigenous content, and they shall also be provided with the necessary training and means for complete mastery of the official language or languages.

 

          3.       The states shall ensure that those educational systems are equal in quality, efficiency, accessibility and in all other ways to that provided to the general population.

 

          4.       The states shall take measures to guarantee to the members of indigenous peoples the possibility to obtain education at all levels, at least of equal quality with the general population.

 

          5.       The states shall include in their general educational systems, content reflecting the pluricultural nature of their societies.

 

          6.       The states shall provide financial and any other type of assistance needed for the implementation of the provisions of this article.

 

          Article X.       Spiritual and religious freedom

 

          1.       Indigenous peoples have the right to freedom of conscience, freedom of religion and spiritual practice, and to exercise them both publicly and privately.

 

          2.       The states shall take necessary measures to prohibit attempts  to forcibly convert indigenous peoples or to impose on them beliefs against their will.

 

          3.       In collaboration with the indigenous peoples concerned, the states shall adopt effective measures to ensure that their sacred sites, including burial sites, are preserved, respected and protected.  When sacred graves and relics have been appropriated by state institutions, they shall be returned.

 

          4.    The states shall encourage respect by all people for the integrity of indigenous spiritual symbols, practices, sacred ceremonies, expressions and protocols.

 

          Article XI.      Family relations and family ties

 

          1.       The family is the natural and basic unit of societies and must be respected and protected by the state.  Consequently the state shall recognize and respect the various forms of indigenous family, marriage, family name and filiation.

 

          2.       In determining the child's best interest in matters relating to the protection and adoption of children of members of indigenous peoples, and in matters of breaking of ties and other similar circumstances, consideration shall be given by courts and other relevant institutions to the views of the peoples, including individual, family and community views.

 

          Article XII.     Health and well-being

 

          1.       Indigenous peoples have the right to legal recognition and practice of their traditional medicine, treatment, pharmacology, health practices and promotion, including preventive and rehabilitative practices.

 

          2.       Indigenous peoples have the right to the protection of vital medicinal plants, animal and mineral in their traditional territories. 

 

          3.       Indigenous peoples shall be entitled to use, maintain, develop and manage their own health services, and they shall also have access, on an equal basis, to all health institutions and services and medical care accessible to the general population.

 

          4.       The states shall provide the necessary means to enable the indigenous peoples to eliminate such health conditions in their communities which fall below international accepted standards for the general population.

 

          Article XIII.    Right to environmental protection

 

          1.       Indigenous peoples have the right to a safe and healthy environment, which is an essential condition for the enjoyment of the right to life and collective well-being.

 

          2.       Indigenous peoples have the right to be informed of measures which will affect their environment, including information that ensures their effective participation in actions and policies that might affect it.

 

          3.       Indigenous peoples shall have the right to conserve, restore and protect their environment, and the productive capacity of their lands, territories and resources.

 

          4.       Indigenous peoples have the right to participate fully in formulating, planning, managing and applying governmental programmes of conservation of their lands, territories and resources.

 

          5.       Indigenous peoples have the right to assistance from their states for purposes of environmental protection, and may receive assistance from international organizations.

 

          6.       The states shall prohibit and punish, and shall impede jointly with the indigenous peoples, the introduction, abandonment, or deposit of radioactive materials or residues, toxic substances and garbage in contravention of legal provisions; as well as the production, introduction, transportation, possession or use of chemical, biological and nuclear weapons in indigenous areas.

 

          7.       When a state declares an indigenous territory as protected area, any lands, territories and resources under potential or actual claim by indigenous peoples, conservation areas shall not be subject to any  natural resource development without the informed consent and participation of the peoples concerned.

 

             SECTION FOUR.  ORGANIZATIONAL AND POLITICAL RIGHTS

 

          Article XIV.    Rights of association, assembly, freedom of expression and freedom of thought

 

          1.       Indigenous peoples have the right of association, assembly and expression in accordance with their values, usages, customs, ancestral traditions, beliefs and religions.

 

          2.       Indigenous peoples have the right of assembly and to the use of their sacred and ceremonial areas, as well as the right to full contact and common activities with their members living in the territory of neighboring states.

 

          Article XV.     Right to self government

 

          1.       Indigenous peoples have the right to freely determine their political status and freely pursue their economic, social, spiritual and cultural development, and accordingly, they have the right to autonomy or self-government with regard to inter alia culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resource management, the environment and entry by nonmembers; and to determine ways and means for financing these autonomous functions.

 

          2.       Indigenous peoples have the right to participate without discrimination, if they so decide, in all decision-making, at all levels, with regard to matters that might affect their rights, lives and destiny.  They may do so directly or through representatives chosen by them in accordance with their own procedures.  They shall also have the right to maintain and develop their own indigenous decision-making institutions, as well as equal opportunities to access and participate in all state institutions and fora. 

 

 

 

          Article XVI.    Indigenous Law

 

          1.       Indigenous law shall be recognized as a part of the states' legal system and of the framework in which the social and economic development of the states takes place.

 

          2.       Indigenous peoples have the right to maintain and reinforce their indigenous legal systems and also to apply them to matters within their communities, including systems related to such  matters as conflict resolution, crime prevention and maintenance of  peace and harmony.

 

          3.       In the jurisdiction of any state, procedures concerning indigenous peoples or their interests shall be conducted in such a way as to ensure the right of indigenous peoples to full representation with dignity and equality before the law.  This shall include observance of indigenous law and custom and, where necessary, use of their language.

 

          Article XVII.   National incorporation of indigenous legal and organizational systems

 

          1.       The states shall facilitate the inclusion in their organizational structures, the institutions and traditional practices of indigenous peoples,  and in consultation and with consent of the  peoples concerned.

 

          2.       State institutions relevant to and serving indigenous peoples shall be designed in consultation and with the participation of the peoples concerned so as to reinforce and promote the identity, cultures, traditions, organization and values of those peoples.

 

             SECTION FIVE.  SOCIAL, ECONOMIC AND PROPERTY RIGHTS

 

          Article XVIII.  Traditional forms of ownership and cultural survival.  Rights to land, territories and resources

 

          1.       Indigenous peoples have the right to the legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property.

 

          2.       Indigenous peoples have the right to the recognition of their property and ownership rights with respect to lands, territories and resources  they have historically occupied, as well as to the use of those to which they have historically had access for their traditional activities and livelihood. 

 

          3.       i)        Subject to 3.ii.), where property and user rights of indigenous peoples arise from rights existing prior to the creation of those states, the states shall recognize the titles of indigenous peoples relative thereto as permanent, exclusive, inalienable, imprescriptible and indefeasible.

 

                   ii)        Such titles may only be changed by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property. 

 

                  iii)        Nothing in 3.i.) shall be construed as limiting the right of indigenous peoples to attribute ownership within the community in accordance with their customs, traditions, uses and traditional practices, nor shall it affect any collective community rights over them.

 

          4.       Indigenous peoples have the right  to an effective legal framework for the protection of their rights with respect to the natural resources on their lands, including the ability to use, manage, and conserve such resources; and with respect to traditional uses of their lands, interests in lands, and resources, such as subsistence.

 

          5.       In the event that ownership of the minerals or resources of the subsoil pertains to the state or that the state has rights over other resources on the lands, the governments must establish or maintain procedures for the participation of the peoples concerned in determining whether the interests of these people would be adversely affected and to what extent, before undertaking or authorizing any program for planning, prospecting or exploiting existing resources on their lands.  The peoples concerned shall participate in the benefits of such activities, and shall receive compensation, on a basis not less favorable than the standard of international law for any loss which they may sustain as a result of such activities.

 

          6.       Unless exceptional and justified circumstances so warrant in the public interest, the states shall not transfer or relocate indigenous peoples without the free, genuine, public and informed consent of those peoples, but in all cases with prior compensation and prompt replacement of lands taken, which must be of similar or better quality and which must have the same legal status; and with guarantee of the right to return if the causes that gave rise to the displacement cease to exist.

 

          7.       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, or when restitution is not possible, the right to compensation on a basis not less favorable than the standard of international law .

 

          8.       The states shall take all measures, including the use of law enforcement mechanisms, to avert, prevent and punish, if applicable, any intrusion or use of those lands by unauthorized persons to take possession or make use of them. The states shall give maximum priority to the demarcation and recognition of properties and areas of indigenous use.

 

          Article XIX.    Workers rights

 

          1.       Indigenous peoples shall have the right to full enjoyment of the rights and guarantees recognized under international labor law and domestic labor law;  they shall also have the right to special measures to correct, redress and prevent the discrimination to which they have historically been subject.

 

          2.       To the extent that they are not effectively protected  by laws applicable to workers in general, the states shall take such special measures as may be necessary to:

 

          a.       effectively protect the workers and employees who are members of indigenous communities in respect of fair and equal hiring and terms of employment;

 

          b.       to improve the labor inspection and enforcement service in regions, companies or paid activities involving indigenous workers or employees;

 

          c.       ensure that indigenous workers:

 

                   i)        enjoy equal opportunity and treatment as regards all conditions of employment, job promotion and advancement; and other conditions as stipulated under international law;

         

                   ii)        enjoy the right to association and freedom for all lawful trade union activities, and the right to conclude collective agreements with employers or employers' organizations;

 

                   iii)       are not subjected to racial, sexual or other forms of harassment;

 

                   iv)       are not subjected to coercive hiring practices, including servitude for debts or any other form of servitude, even if they have their origin in law, custom or a personal or collective arrangement, which shall be deemed absolutely null and void in each instance;

 

                   v)       are not subjected to working conditions that endanger their health and safety;

 

                   vi)       receive special protection when they serve as seasonal, casual or migrant workers and also when they are hired by labor contractors in order that they benefit from national legislation and practice which must itself be in accordance with established international human rights standards in respect of this type of workers, and,

 

                   vii)      as  well as their employers are made fully aware of the rights of indigenous workers, under such national legislation and international standards, and of the recourses available to them in order to protect those rights.

 

          Article XX.     Intellectual property rights

 

          1.       Indigenous peoples have the right to the recognition and the full ownership, control and protection of their cultural, artistic, spiritual, technological and scientific heritage, and legal protection for their intellectual property through trademarks, patents,  copyright and other such procedures as established under domestic law;  as well as to special measures to ensure them legal status and institutional capacity to develop, use, share, market and bequeath that heritage to future generations.

 

          2.       Indigenous peoples have the right to control, develop and protect their sciences and technologies, including their human and genetic resources in general, seed, medicine, knowledge of plant and animal life, original designs and procedure.

 

          3.       The states shall take appropriate measures to ensure participation of the indigenous peoples in the determination of the conditions for the utilization, both  public and private, of the rights listed in the previous paragraphs 1. and 2.

 

          Article XXI.    Right to development

 

          1.       The states recognize the right of indigenous peoples to decide democratically what values, objectives, priorities and strategies  will govern and steer their development course, even where they are different from those adopted by the national government or by other segments of society.  Indigenous peoples shall be entitled to obtain on a non-discriminatory basis appropriate means for their own development according to their preferences and values, and to contribute by their own means, as distinct societies, to national development and international cooperation.

 

          2.       Unless exceptional circumstances so warrant in the public interest, the states shall take necessary measures to ensure that decisions regarding any plan, program or proposal affecting the rights or living conditions of indigenous peoples are not made without the free and informed consent and participation of those peoples, that their preferences are recognized and that no such plan, program or proposal that could have harmful effects on those peoples is adopted.