Protection of right of indigenous peoples

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This article was written by Shubham Yadav, a student of New Law College, Bharati Vidyapeeth Deemed University, Pune.

Introduction 

As we all know a man is a social animal. Someone has said that brave shall inherit the earth. But every born person shall have the basic fundamental rights to enjoy their rights. So, it is seen from medieval to the present period that weaker is dominated by the elites in the form of bonded labours and these people are known as tribal, indigenous and in India, they are called as Schedule caste and schedule tribe. Indigenous people or aboriginal people are those who were living on their land before settlers came from elsewhere. They are people who belong to pre-invasion and pre-colonial societies and consider themselves distinct from other sections of the societies prevailing in those territories.[1]

Indigenous people are the matter of concern at international level. The inclusion of rights of indigenous people under human rights is an enormous achievement. Various litigation has shown concern for indigenous people. UN has shown major concern for indigenous people by various treaties, convention, and international judgment. UNDRIP is one of the vital placement for the welfare of the indigenous people.[2] Indigenous peoples are those people, who are practicing unique traditions, culture, and way of life and retain social, cultural, economic and political characteristics that are distinct from other segments of the population in the communities.[3]

people lost their land, they have nothing. You lose your land — you lose your culture, you lose yourself.”[4] Indigenous people live in nearly all the countries on all the continents of the world and form a spectrum of humanity, ranging from traditional hunter-gatherers and subsistence farmers to legal scholars.[5]In some countries, they form a majority of the population while in others they comprise small minorities. Various indigenous E.g., the Mayas in Guatemala or Aymara’s of Bolivia; Saami of Northern Europe; the aborigines and Torres Strait Islanders of Australia; and the Maori of New Zealand. “Indigenous individuals are very long-time sufferer of mistreatment, and keep on losing their territories, their dialects, and their assets at a disturbing rate. Regardless of these hindrances, indigenous individuals make a huge commitment to our reality, including through their profound association with the earth.[6]

Historical aspects

1. The Colonial Period-

Since such period indigenous peoples lost ownership and control over most of their ancestral lands. Yet the ways in which indigenous peoples lost these lands differ significantly in the different States and regions Colonizers and indigenous peoples initially acted as separate sovereigns, governed by international law. Since the Europeans arrivals, indigenous peoples became involved in matters of trade, passage, and security.[7]

In 1493, Pope Alexander granted Spain and Portugal authority over diplomacy, governance, and trade with indigenous peoples around the world.[8] There were some of the seeds of the international law for Indian conquest—articulated in the Spanish Requerimiento of 1512—which led to violence, dispossession, and devastation for indigenous peoples.[9]

As per seventeenth and eighteenth centuries, international law has been defined as the Law of Nations, which was premised on the natural rights of the nation-state as well as the positive law of treaties and arrangements among states.

1. The Emergence of International Human Rights Law-

Efforts laid important groundwork in the modern indigenous human rights movement. The modern journey of indigenous stated by the League of Nations, formed after World War I, which promised self-determination for states and protection for minorities.[10]

Indigenous peoples and international law-

At the international level there are numerous instruments which protect and promote the human rights of all individuals. The various provisions in these documents are relevant for the protection and promotion of their rights. E.g., UN Charter, 1945.[11] Universal Declaration of Human Rights, 1948[12] and The International Convention on the Elimination of All Forms of Racial Discrimination,1965[13], etc.

The Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly on September 2007 by a majority of 144 states in favour and 4 states against.[14] The working group was established by the sub-commission on prevention of discrimination and protection of minorities[15] which initiated a study of discrimination against indigenous peoples. Declaration on the right of indigenous peoples have following provisions.[16]

• Indigenous peoples have the right to the full and effective enjoyment of all human rights and fundamental freedoms.[17]
• Indigenous peoples have right to maintain and strengthen their distinct political, economic, social, and cultural characteristics, as well as their legal systems.[18]
• Every indigenous individual has the right to a nationality.[19]
• Indigenous people shall not be forcibly removed from their lands, and territories.[20]
• Indigenous peoples have the right to practice their cultural traditions and customs.[21]
• Indigenous people have right to enjoy fully all rights established under international and domestic labour legislation.[22]
• Indigenous peoples have the right to the conservation, and protection of the total environment and the productive capacity of their lands, territories and resources.[23]

The most legislation address the rights of indigenous peoples in the world are, the International Labour Organization’s Convention No. 169 of 1989 and the UN Working Group on Indigenous Population’s Draft Declaration of the Rights of Indigenous Peoples, 2007. This Convention is a legally binding international instrument open to ratification and it has been ratified by 20 countries.[24]

“All persons have equal protection against discrimination on any ground such as race, colour, caste, language, religion, political or other opinion national or social origin, property, birth or status.”[25]

wherein it has made some significant recommendations on minorities and their effective participation in economic life, which each country is mandated to follow.[26] The right of minorities to participate effectively in economic life must be fully taken into account by governments seeking to promote equality at every level from implement non–discrimination in employment and enforcing protection laws in the private to developing national economic development and international development assistance schemes.” This Convention deals with various issues like, land rights, employment, vocational training, social security and health, means of communication and cooperation. The Convention states that governments shall have the responsibility for developing a systematic and coordinated action to protect the rights of indigenous and tribal peoples.[27] and assure that adequate mechanisms and means are available.[28]

The greatest significance of this Convention is that it can be used as is a tool for communication between governments and indigenous peoples and prevent any possible conflicts between them.

Indigenous People in India

India is having the largest concentration of indigenous people in the world. However, the term indigenous people is not accepted in India as it is considered “divisive and undermining the unity of the Indian nation.[29] Instead of the term indigenous people, the Constitution of India uses the term Scheduled Tribe (hereinafter ST). Recently, the Indian judiciary has also unequivocally asserted that STs are indigenous peoples of India.[30]

Tribal groups in India are considered to be the earliest inhabitants of the country. However, to identify the precise origin of today’s tribal people due to the fact that, the tribal population was exposed to diverse waves of invaders and other settlers over thousands of years.[31] According to Article 342 of the Constitution, the STs are the tribes or tribal communities or; part of or groups within these tribes and tribal communities that have been declared as such by the President of India through a public notification.

As per Indian context a tribe can be identified on the basis of the following criteria:

1. Geographical isolation: They live in cluster, exclusive remote and inaccessible areas like hills and forests;
2. Backwardness: They depend upon primitive agriculture for livelihood and have low level of literacy, employment and health;
3. Distinctive culture, language and religion.[32]

The STs are also called as Adivasis in India which means original inhabitants (Adi means earliest time; and vasi means resident of).[33] there are number of Adivasi groups in India like; Bhils, Gondas, Santhals, Abors, Kuki, Kotas, Mundas, Nagas, Todas etc. about 645 groups are recognized as STs.[34] As per Indian constitution following rights contains:

1. Educational and cultural rights (Articles 15(4), 29, 46 and 350
2. Social rights (Articles 23 and 24);
3. Employment rights (Articles 15(4), 16(4) and 16(4A))

In addition to constitutional provisions, there are other legislations which contains provisions in favour of STs in India. They are, the Protection of Civil Rights (Anti-Untouchability) Act, 1955; the Bonded Labour (Abolition) Act, 1976; the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; the Panchayat (Extension to the Scheduled Areas) Act 1996.

 

The Gap between the Legal Framework and the Reality-

 “We are not myths of the past, ruins in the jungle, or zoos. We are Human being and we want to be respected, not to be victims of intolerance and racism.”[35]

• The declaration creates new rights for indigenous peoples?

The Declaration does not create new rights. In spite it elaborates upon existing international human rights norms and principles as they apply to Indigenous peoples.

In reality Indigenous peoples, are experienced violations of their human rights and often experience poverty and disadvantage to a greater extent than the rest of the population in the countries in which they live. While Indigenous people groups are qualified for the full insurance of the individual human rights framework that has existed for as far back as sixty years, their rights keep from being damaged. Thus, administrations of the world have conceded to the need to explicitly recognize those particular issues that Indigenous people groups face to enhance how their rights are secured. The Declaration unites the prior rights that are important to Indigenous people groups into one intelligible archive.[36] There was a continuous plague on Indigenous Peoples around the world. They are into danger upon their culture, their land, their identity, and their own voice. In short, the Declaration lays out the minimum standards for the ‘survival, dignity and wellbeing of Indigenous Peoples’. That, itself, is language taken from the Declaration and is proof enough of the practical value of the instrument.[37]

• Does the indigenous people can have separate education systems?

Indigenous people have the right to set up and control own schools where Indigenous students are instructed in their own languages and taught their own cultures.[38] But in reality, only a few Bilingual schools complying with the laws and regulations of governments around the world, while ensuring that Indigenous students can exercise their rights to learn their own languages and culture.

• Do the indigenous people groups got any prominent rights to the land beyond those previous predetermined in the local act?

The Declaration presume governments to set up a ‘reasonable, autonomous, fair, open and straightforward procedure to perceive and arbitrate the privileges of indigenous people groups pertaining to their lands, territories, and resources, including those which were traditionally owned or otherwise occupied or used’. But such declaration merely provides additional impetus to the indigenous community besides that there is no great right to land is specified.[39] In case of the ogiek community of Kenya won the 7yrs battle in protecting their land and ecosystem.[40]

Measures of indigenous people at local, national, and international level

• The indigenous people’s right over their ancestral land should be recognized and they should not be forcefully evicted from their land. Therefore, the developmental projects should be planned accordingly and must exclude the land of indigenous people. In case it is necessary to acquire the land of indigenous people it should be made mandatory for the concerned authority to rehabilitate the indigenous people.
• The right to self-determination of the indigenous people must be recognized not only on paper but in reality.
• There should be an involvement of indigenous people while implementing any policy for the protection and promotion of their rights.
• Historically disadvantaged groups must be given special protection & help so that they could be uplifted from their poverty & low social status- among disadvantaged groups.[41]
• The basic rights like right to food, right to education, and right to health must be given special attention and the concerned local authorities of that area must take all possible steps to ensure these rights to the indigenous people.
• Efforts must be made for strengthening the communication system between the authorities and indigenous people. Training should be given to every indigenous group so that they can act as a link between the indigenous group and the authorities. So also, every six months there should be a meeting of the authorities and the indigenous group so that the problems of the indigenous people can be discussed and immediate steps can be taken for solving them.
• There should be a proper mechanism for protection of the right of indigenous peoples and urgent need for strong legislation.

Comparative study –

As per the Canadian charter, it’s not deal with the constitutional right of the indigenous people, rather than it’s a corresponding right and freedom.[42] In India, 68 million people belonging to 227 ethnic groups and comprising of 573 indigenous communities derived from six racial stocks namely – forest and utilize wild edible plants both raw and cooked. The flower and fruits are generally eaten raw whereas tubers, leaves, and seeds are cooked. These people utilize forest produce, forest timber, and fuel wood, living in the forest since ages and have developed a kind of affinity with the forest.[43] Indigenous peoples from Laos, Cambodia, Guatemala, Burma, and Namibia, found that there are threats to indigenous people are growing rather than diminishing in these countries.[44] Must treat indigenous peoples as active stakeholders rather than passive beneficiaries.[45] Every indigenous individual crosswise over Africa whose presence was to a great extent disregarded – both in law and in actuality – until today. The decision spells the start of a brighter future of indigenous.[46]

Conclusion-

Indigenous people are often subject to discrimination and suffer severe violations of their rights. In almost every country of the world, the indigenous people are living in poverty and are socially and economically backward. Though, there are various legal measures at the international and national level, these measures are either not implemented properly or the benefits are not made available equally to all. India is having the largest population of indigenous people in the world and being a welfare state, it is the duty of the government to take all possible measures for protecting the rights of indigenous people. Though, the Constitution of India guarantees numerous rights such as the right to life, education, and culture, etc., the actual realization of these rights is a distant goal. So also, though there are a number of legislations in favor of indigenous people, the studies show that their rights are often violated and they are still living in social and economically backward conditions. We all are well versed with nuclear radiation victims and prevent history from repeating itself again.[47]

 

[1]   H.O. Agarwal, Human Rights 157 (2002).

[2]   United Nations Declaration on the Rights of Indigenous Peoples.

[3]   See Who are Indigenous Peoples? (http://www.un.org/esa/socdev/unpfii/documents/5session_ factsheet).

[4]   Richard Gere.

[5]   See the Rights of Indigenous Peoples (Feb. 2, 2013), http://www1.umn.edu/humanrts/edumat/study guides/ indigenous.html.

[6]   Ban Ki-moon (secretary general of U.N.).

[7]   See Nathaniel Philbrick, Mayflower: A Story of courage, community, & war 99-113 (2006).

[8]   See Robert J. Miller, The International Law of Colonialism: A Comparative Analysis, 15 LEWIS & CLARK L. REV. 847, 887–88 (2011).

[9]   see ANAYA, supra note 1, at 16–19, 36 n.20 (quoting King Ferdinand’s Requerimiento of 1512 that called on “idolatrous Indians” to acknowledge the supremacy of the Catholic Church, Pope, and Spanish monarchy over them and their lands, or otherwise submit to war, slavery, and the destruction of property).

[10]   See Antony Anghie, Nationalism, Development and the Postcolonial State: The Legacies of the League of Nations, 41 TEX. INT’L L.J. 447, 448–49 (2006).

[11]   Art. 1(2) of UNDRIP, Right to Self Determination.

[12]   Art. 2: Right against Discrimination.

[13]   Art. 1: Right against Racial Discrimination.

[14]   Australia, Canada, New Zealand and the U.S.

[15]   UNDRIP,1994 (draft report).

[16]   See Resolution 1994/45 of the sub-commission on prevention of discrimination and protection of minorities.

[17]   Art. 1, UNDRIP.

[18]   Art. 5, UNDRIP.

[19]   Art. 6, UNDRIP.

[20]   Art. 10, UNDRIP.

[21]   Art. 11, UNDRIP.

[22]   Art. 17, UNDRIP.

[23]   Art. 29, UNDRIP.

[24]   See http://www.ilo.org/indigenous/Conventions/no169/lang–en/index.htm.

[25]   Art. 27, International Covenant on Civil and Political Rights, 1966 (ICCPR).

.[26]   UN Human Right Council, Forum on Minority issued on December 14 and 15, 2010.

[27]   Art. 3, ILO.

[28]   Art. 33.

[29]      Gillette H. Hall, Harry Anthony, indigenous peoples, poverty, and Development 205 (2012).

[30]   Kailas and Ors. v. State of Maharashtra, (2011) 1 S.C.C. 793.

[31]   See Maitreyi Bordia Das, Gillette Hall, Soumya Kapoor, and Denis Nikitin, India’s Adivasis, http://siteresources.worldbank.org/EXTINDPEOPLE/Resources/407801- /India_brief_clean_0110.pdf.

[32]   P.R. Memorial Foundation, A Report on Status of Panchayat Extension to Scheduled Areas (PESA) Act 1996: In the States of Andhra Pradesh, Orissa, Jharkhand, Gujarat and Chhattisgarh.

[33]   http://siteresources.worldbank.org/EXTSOCIALDEVELOPMENT/Resources/244362-65299949041/6766328-1285599693282/India-PSE-Adivasis_Brief.pdf.

[34]   J.J. Roy Burman, Adivasi: A Contentious Term to denote Tribes as Indigenous Peoples of India, MAINSTREAM, Vol. XLVII, No.32, 2009.

[35]   Rigoberta Manchu (Firstpeoples.org).

[36]   U.N. office (according to high commissioner human right).

[37]   Panel Presentation, New York, 4 November 2006(Declaration from historic document.

[38]   Art. 14.

[39]   Art. 27.

[40]   African court of human & people’s rights (precedent for indigenous peoples’ land rights.

[41]   Kailas & others v. state of Maharashtra (2011) 1 S.C.C. 793.

[42] Section 25 of Canadian charter.

[43] International Journal of Scientific & Engineering Research, Volume.

[44] School of Maori Studies at Massey University, Private Bag 756, Wellington, New Zealand.

[45] Peoples’ Rights (Endorois case), 4 February 2010.

[46] Cynthia morel (legal advisor with minority rights groups international).

[47]   Hilda Lini.