Martinez-Study: Chapter II

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Chapter II: Summary of findingslink

91. In the three progress reports submitted until now, the Special Rapporteur has endeavoured to address not only the various aspects of the question of treaties between Indigenous peoples and States as identified by Mr. Martínez Cobo, 28but also those same aspects in connection with agreements and other constructive arrangements as mandated by the Commission and ECOSOC.

92. Those issues include among others, the areas covered by such instruments, their present-day legal standing, their implementation or lack thereof, and the consequences this might entail for Indigenous peoples.

93. These aspects were addressed on the basis of manifold sources and documentation, including the results of responses received to the two questionnaires circulated twice at the beginning of his mandate; 29the results of field and archival research conducted either by himself or his Consultant; and extensive documentation and other materials submitted by interested parties, whether States, Indigenous peoples or organisations, scholars, and other individuals concerned.

94. The sheer volume and diversity of these documents have led the Special Rapporteur to devote particular attention to the overall approach of the Study and its methodological and theoretical challenges. The main approaches taken in this regard were spelled out in his first progress report. 30They can be summarised as follows.

95. The Special Rapporteur insisted from the start on the need for a transdisciplinary approach — albeit with a strong juridical focus.31

96. Any attempt to explore and understand Indigenous representations and traditions regarding treaties, agreements and other constructive arrangements must be carried out so as to favour a decentered view on culture, society, law, and history, and to deal critically with ethnocentrism, eurocentrism, and the evolutionist paradigm.

97. Moreover, the close connection between the Indigenous problematique, the phenomena of colonialism, domination, and assimilationist policies had to be thoroughly reviewed and acknowledged. This is a connection also made in the academic disciplines involved (such as anthropology), as well as in the legal discourse and in positive law.32

98. There are numerous historical examples of law as an instrument of colonialism, such as the doctrine of terra nullius, the encomienda and repartimiento systems instituted in Latin America by the Spanish Crown in the sixteenth century, the so-called removal treaties imposed on the Indigenous nations of the southeastern United States under President Jackson in the 1830s, and various types of State legislation encroaching on (or ignoring) previously recognised Indigenous jurisdiction, such as the Seven Major Crimes Act and the Dawes Severalty Act passed by the United States Congress in the 1880s, the federal Indian Act in Canada, post-Mabo legislation in Australia, and in many pieces of legislation throughout Latin America.

99. Yet, with rare exception, the discourses of law itself, including that on treaties and treaty-making in the context of European expansion overseas and that of their successors in the territories conquered, are not impervious to anachronism and ex post facto reasoning, thus condoning discrimination of Indigenous peoples rather than affording them justice and fair treatment.

100. A critical historiography of international relations clearly shows the dangers of this particular kind of reasoning that projects into the past the current domesticated status of Indigenous peoples, as it evolved from developments taking place mainly in the second half of the nineteenth century under the impact of legal positivism and other theories advocated by European colonial powers and their continuators.

101. In his second progress report, the Special Rapporteur endeavoured, inter alia, to assess the contribution of that historiography to a better understanding of treaties and other legal instruments mutually agreed Indigenous peoples and States, considering in particular the works of Charles H. Alexandrowicz and other relevant authors.33

102. As established supra (para. 58), the main finding that emerges from these works relates to the widespread recognition of “overseas peoples” — including Indigenous peoples in the current sense of the term — as sovereign entities by European powers and their successors, at least during the era of the Law of Nations.

103. Consequently, the problematic of Indigenous treaties and other juridical instruments today affecting the lives of these peoples, hinges on what the Special Rapporteur has termed a process of retrogression, by which they have been deprived of (or saw greatly reduced) three of the four essential attributes on which their original status as sovereign nations was grounded, namely their territory, their recognized capacity to enter into international agreements, and their specific forms of government. 34Not to mention the substantial reduction of their respective populations in many countries around the world, due to a number of factors including, assimilationist policies.

104. This aspect can hardly be overemphasised, especially since the ultimate purpose of the Study pertains to the potential utility of yet another process of reversal that would eventually lead toward renewed recognition of Indigenous peoples as distinct collectivities, allowing these peoples redress for decades — if not centuries — of discrimination and forced integration.

105. It is against this backdrop that the following summary of the Special Rapporteur’s findings regarding the three main categories of juridical instruments retained for study ought to be considered.

a) Treaties/Agreements between Indigenous peoples and Stateslink

106. In his initial research, the Special Rapporteur focussed, by force of circumstance, on the situation of former European settler colonies, especially in North America and the Pacific, given the extensive practise of treaty-making in the context of British and French colonial policy.

107. It should be noted that, although the Special Rapporteur affirmed initially that few, if any, treaties could be traced back to colonial times in Latin America, 35further research has led him to reconsider this assumption. This modified approach is documented in the third progress report, especially with the example of the Mapuche parlamentos (Chile). At this final stage of his work, the Special Rapporteur is inclined to accept that the origin, causes, and development of these juridical instruments can be compared, prima facie, and in some aspects, to those of certain Indigenous treaties in British and French North America.36

108. In establishing formal legal relationships with peoples overseas, the European parties were clearly aware that they were negotiating and entering into contractual relations with sovereign nations, with all the international legal implications of that term during the period under consideration.37

109. This remains true independently of the predominance, nowadays, of more restricted, State-promoted notions of Indigenous “self-government”, “autonomy”, “nationhood” and “partnership” — if only because the “legitimisation” of their colonisation and trade interests made it imperative for European powers to recognise Indigenous nations as sovereign entities.

110. In the course of history, the newcomers then nevertheless attempted to divest Indigenous peoples, as pointed out above, of their sovereign attributes, especially jurisdiction over their lands, recognition of their forms of societal organisation, and their status as subjects of international law.

111. The various ways and means utilised in the process of domesticating relations with Indigenous peoples in the context of those former European settler colonies were addressed both in the second progress report (New Zealand, Australia, and in the unique case of Hawaii) 38and in the third progress report (Canada, United States, Chile). 39For a more general and detailed review of this process and its consequences, see Chapter III infra.

112. Nonetheless, it is important to stress at this point, that the passage, for Indigenous peoples, from the status of sovereign nations to that of State-domesticated entities raised a certain number of questions and posed specific challenges from the point of view of this Study.

113. First of all, in the case of treaty relations, one notes a general tendency to contest that treaties involving Indigenous peoples have a standing, nowadays, in international law. This point of view, which is widespread among the legal establishment and in scholarly literature, 40has been basically grounded alternatively on three assumptions: either it is held that Indigenous peoples are not peoples according to the meaning of the term in international law; or that treaties involving Indigenous peoples are not treaties in the present conventional sense of the term: that is, instruments concluded between sovereign States (hence the established position of the U.S. and Canadian judiciary, by virtue of which treaties involving Indigenous peoples are considered to be instruments sui generis); or that those legal instruments have simply been superseded by the realities of life as reflected in the domestic legislation of States.

114. Whatever the reasoning followed, the dominant viewpoint — as reflected, in general, in the specialized literature and in State administrative decisions and the decisions of the domestic courts — asserts that treaties involving Indigenous peoples are basically a domestic issue, to be construed, eventually implemented, and adjudicated via existing internal mechanisms, such as the courts and federal (and even local) authorities.

115. It is worth underlining, however, that this position is not shared by Indigenous parties to treaties, whose own traditions on treaty provisions and treaty-making (or negotiating other kinds of compacts) continue to uphold the international standing of such instruments. Indeed, for many Indigenous peoples, treaties concluded with European powers or their territorial successors overseas are, above all, treaties of peace and friendship, destined to organize coexistence in — not their exclusion from — the same territory and not to restrictively regulate their lives (within or without this same territory), under the overall jurisdiction of non-indigenous authorities. In their view, this would be a trampling on their right to self-determination and/or their other unrelinquished rights as peoples.

116. By the same token, Indigenous parties to treaties have rejected the assumption held by State parties, that treaties provided for the unconditional cession of Indigenous lands and jurisdiction to the settler States.

117. It is worth noting in this regard that Indigenous views on treaties have begun to receive increased attention in some countries, such as Chile, New Zealand, and Canada. Thus, in its recent Final Report, the Royal Commission on Aboriginal Peoples, established by the Canadian Government, recommended that the oral history of treaties, orally transmitted from generation to generation among Indigenous peoples, be used to supplement the official interpretation of treaties based on the written document.41

118. Nevertheless, the contradictions one notes regarding the historiography and interpretation of treaties, depending on whether one deals with State-promoted views on this matter, the established academic legal discourse, or the traditions upheld by Indigenous peoples themselves, their practical consequences undoubtedly create a conflict situation.

119. In addition, these contradictions place a formidable burden on the formulation and realisation of future negotiated legal instruments between Indigenous peoples and States: the difficulties of negotiating those new instruments, without having previously identified and settled key questions need not be stressed.

120. This observation clearly pertains to all treaty/agreement-related issues. One example is the alleged opposition, in the Canadian context, between treaties of peace and friendship (eighteenth century and earlier) and so-called numbered treaties of “land surrenders” (especially from the second half of the nineteenth century on). This opposition is contradicted by Indigenous parties to numbered treaties, who consider that they are parties to treaties of peace, friendship and alliance and that they did not cede either their territories or their original juridical status as sovereigns. Similar discrepancies are to be noted in the United States and New Zealand.

121. Closer scrutiny of the provisions of treaties concluded between Indigenous peoples and States also reveals that in most cases the object of such treaties is common in international law, whatever the historical period considered; thus such treaties deal with questions of war/peace, trade provisions, protection of the subjects/citizens of each signatory party, and so forth.

122. Furthermore, while the predominant present day legal discourse holds that treaties fall primarily within the domestic realm of States, the manner in which treaties are dealt with in municipal law and by the national courts nevertheless also raises a number of questions.

123. In this connection, failure of State parties to comply with, or their violation of the obligations assumed under existing treaties, the unilateral abrogation of the treaty itself (or parts thereof), via State law or other mechanisms, and even the failure of State parties to ratify treaties negotiated with Indigenous peoples were problems identified, at an early stage of his work, by the Special Rapporteur regarding the significance of treaties/agreements at the national level.

124. Such problems are, in one way or another, connected with most juridical situations retained by the Special Rapporteur for study; moreover, they are not limited to historical situations but also do arise with respect to more modern compacts.42

125. It follows that the enforcement and implementation of existing, recognised treaties involving Indigenous peoples today can hardly be taken for granted. Furthermore, it remains to be seen what burden this state of affairs places on the modalities of future negotiated agreements between Indigenous peoples and States. Obviously, this also has a number of practical consequences for the status and legal personality of Indigenous peoples, both at the national and at the international level.

b) Other constructive arrangementslink

126. Turning now to the quasi-juridical term other constructive arrangement it must be recalled that this was defined by the Special Rapporteur from the start as “any legal text or other documents that are evidence of consensual participation by all parties to a legal or quasi-legal relationship.”43

127. The main example examined under the heading of “other constructive arrangements” concerns the Greenland Home Rule. At the start of his mandate, on the basis of various submissions made by the Greenlandic delegates and the Danish Government to the Working Group, the Special Rapporteur thought it convenient to assess whether the kind of procedure instituted by Denmark in 1979 could be useful for the realisation of improved relations between Indigenous and non-indigenous parties.44

128. His more recent, detailed analysis of the Greenland home Rule, 45showed proof, in the view of the Special Rapporteur, that the arrangement in question entails a number of restrictions for the Indigenous population of the island, both in terms of the process which led to its establishment, as well as to the effects of its provisions. For example, since the Danish constitution has full effect in Greenland, the Home Rule Authorities must abide by all constitutional provisions in crucial fields such as foreign policy and the obligations arising from international agreements entered into by Denmark.

129. This could have had certain grounds for legitimisation — in terms of the real exercise by Greenlanders of the right to self-determination — had the effective input of the Indigenous population of Greenland into the formulation and implementation of Home Rule not been limited. For instance, according to the information available to the Special Rapporteur, Greenlanders were — contrary to the Danes — not consulted by referendum about the institution of Home Rule.

130. The Special Rapporteur is of the opinion that the type of “autonomy regime” provided for under the Home Rule does not amount to the exercise of the right to self-determination by the population of Greenland. By the same token, he believes that the way in which the discussions took place between Greenlandic and Danish officials prior to the introduction of Home Rule in 1979 can in no way be described as a constructive example of how to understand the actual full exercising of such an inalienable right.

131. In other countries, discussions are currently taking place with the view to establishing (or implementing) autonomy regimes, or adopting measures to recognise a distinct legal status for Indigenous peoples, whether these are to be decreed by law or to be enshrined in the national constitution. Prominent examples addressed by the Special Rapporteur concern the Kuna Yala in Panama and the Atlantic region in Nicaragua.46 One should also take cognizance of the new developments taking place in Guatemala in these last years.

132. These autonomy regimes have brought (or may bring) certain advantages to Indigenous peoples. For example, in the case of Panama, autonomy has allowed for the recognition, by the State, of the traditional political authorities of the Kuna Indians, especially the Kuna General Congress, and some control over development polities within the Indigenous territory.

133. The Special Rapporteur notes, however, that recognition of “autonomy” for Indigenous peoples within the State (whatever powers or restrictions thereto are established), most probably will not automatically end State aspirations to eventually exert the fullest authority possible (including integrating and assimilating those peoples), nor, in that case, nullify whatever inalienable riglits these people may have as such.

134. Moreover, the mechanisms through which “autonomy regimes” for Indigenous peoples are being formulated and implemented must be assessed, on a case-by-case basis, for proof of free and informed consent of all parties concerned, especially Indigenous peoples.47

135. Similar concerns might be raised about other juridical situations that could be described by some sources as “constructive arrangements” — most prominently the James Bay and Northern Québec Agreement (Convention in its French version), the first in a series of so-called “comprehensive land claims settlements” in Canada— which were addressed by the Special Rapporteur in his third progress report.48

136. These concerns refer to, inter alia, the fact that in this particular case, treaty negotiations were only set in motion after considerable turmoil in connection with a vast, government-sponsored hydro-electric project. Moreover, the amount of litigation the agreement in question has generated led the Special Rapporteur to very seriously ponder the efficacy of treaty negotiations in situation of economic, environmental and political duress resulting from one-sided Government policies.

137. Given the actual prevalence of the policy of comprehensive land claims settlement in Canada and the avalanche of documentation requiring review in this regard, the Special Rapporteur is not in a position, at present, to hold nothing more than tentative views on other cases regarding this particular type of “constructive arrangements”.

138. Discussions and negotiations currently taking place in several countries (not only in Canada), warrant further, long-term analysis of the mechanisms envisaged and applied to arrive at a settlement, and the modalities of their implementation. It should be noted in this regard that the completion of several land claims settlements and so-called “modern treaties” in Canada raises a number of interesting issues. Among them is the wide variety of parties (Indigenous nations, provincial authorities, and the federal Government) involved in such processes.

139. The significance and international relevance of developments in that country cannot be overstressed. This is so, if only because they highlight the importance and potential utility of establishing sound, equitable “ground rules” for the negotiations required to draft and conclude “constructive arrangements”, as well as for the efficient performance of the mechanisms needed for their practical implementation which are so necessary for developing new approaches to Indigenous problems. Not only in Canada, but also in all other multinational countries with the same or similar problems.

140. Indeed, all this will be put to the test in the vast array of “comprehensive land claims settlement” and treaty negotiations are currently taking place in various regions of Canada. For example, in British Columbia — where a first agreement was reached with the Nishga in 1996 — , and in the Northwest Territories — where one notes the particular difficulties encountered by Indigenous peoples.

141. Thus, after negotiations with the Déné nation as a whole broke up in the late eighties, the State party decided to negotiate with individual bands. To date, two settlements have been reached, namely with the Sahtu and the Gwich’in.49

142. Such fragmentation of Indigenous entities via the negotiation process also occurred in other cases, for example regarding the Lubicon Cree. Accordingly to the information available to the Special Rapporteur, a new band was created — under questionable conditions, according to some Indigenous sources — to facilitate a partial land claims settlement. To date, however, the Lubicon case itself has not been settled, mainly because the Indigenous party is unwilling to accept the complete extinguishment of native title as a prerequisite for settlement.

143. In all. situations — whether or not governed by treaty/agreements — the issue of possible extinguishment of Indigenous rights to their lands, either by treaty/agreement or “constructive arrangements” is of crucial importance, since it imposes duress on the Indigenous party.

144. It follows that the category of “other constructive arrangements” while added belatedly to the mandate of the Special Rapporteur, has revealed itself to be of particular significance as far as how to identify and duly establish solid bases for a new, more equitable future relationship between the Indigenous and non-indigenous sectors of society is concerned.

145. At this stage it is important to note that contrary to treaties (especially so-called “historical” treaties), constructive arrangements — and this applies to all examples considered to date under the mandate of the Special Rapporteur — are intended, per se, as to be dealt with exclusively within the municipal setting.

146. In accordance with the abundant information recently received, in situ, by the special Rapporteur, it seems clear that in the Canadian context, constructive arrangements such as “comprehensive land claims settlements” and so-called “modern treaties” are basically conceived as a means to settle all outstanding Indigenous claims. According to this information, they mostly concern areas in which Indigenous peoples are not parties to treaties. In general it remains to be seen in what manner the enforcement and implementation of the provisions of possible constructive arrangements of this type can be ensured, especially for the Indigenous parties to such agreements.

147. From the start, the Special Rapporteur decided that, in order to fulfill his mandate, it was imperative to review the situation of Indigenous peoples that are not parties to any of the instruments covered by the Study.

148. Lacking such a review, it would be impossible for him to assess whether or not treaty-making (again, in the broadest sense of this term) can be considered as an appropriate juridical tool to improve the situation of Indigenous peoples in general, set the pattern to eradicate any discriminatory treatment against them, and to gradually put an end to the present day antagonistic nature of the relationship existing between Indigenous and non-indigenous peoples living together in many countries.

149. Regarding the categories of Indigenous peoples falling under the present section, the Special Rapporteur identified the following general situations in his first progress report: a) Indigenous peoples who have never entered into consensual relations with any State; b) Indigenous peoples parties to instruments that were unilaterally abrogated — either formally or by way of outright non-implementation — by the State party; c) Indigenous peoples who participated in the negotiation and adoption of instruments that were never ratified by the competent State bodies; and d) Indigenous peoples living in countries where, as the result of an effective process of acculturation, the municipal legislation lacks specific provisions guaranteeing distinct status to them and protection of their rights as peoples.

150. Peoples falling into one or more of these groupings include, of course, those who, because of the lack of recognition of their Indigenous status by the State, have been denied any possible redress — either in law or by formal negotiation — in conflict situations related, precisely, to this status.50

151. First and foremost, it must be pointed out that, at present — and with very few exceptions — national and international legal texts having a bearing on the living conditions of Indigenous peoples are enacted and enforced by State institutions without direct Indigenous input.

152. The cases initially retained for study under this heading included the Aborigines and Islanders in Australia, the Gitksan and Wet’suwet’en in British Columbia, the Yanomami of Brazil, the Indigenous Hawaiians, the Mapuche (Argentina and Chile), the Maya of Guatemala, the Lubicon Cree of Alberta (Canada), the San (Botswana), the Ainu (Japan), the people of the so-called rancherías in California (United States), and the Kuna of Panama.

153. Upon finishing his research, the Special Rapporteur considers that it may be useful to review the above list, so as to determine — at least provisionally — what would be the most practical and fruitful means (i.e. treaty/agreement renegotiation and/or proper implementation, “constructive arrangement”, resort to international bodies, or some other formula) of constructively approaching, in the future, the wide array of current situations confronting those peoples mentioned above.

154. In all cases, the historical development of each of their individual predicament must be duly considered, since it may provide definite clues as to the idoneity of the possible available solutions.

155. It should be stressed however, that any decision concerning such a solution must be reached with full participation of the Indigenous party. No other approach may lead to a much-needed process of confidence-building and thus to consensual legal instruments.

156. The Special Rapporteur has already indicated changes suggested regarding the treaty situation in Latin America (para. __). [Anmerkung: Zahl fehlt im Original]

157. Thus, the case of the Mapuche actually can be included under the category of peoples who have already participated in a process of treaty-making. Others, like the Kuna, may gain their protection through “constructive arrangements”, an apparently still ongoing process. For the Maya and Yanomami, see infra, para. 165.

158. Furthermore, at this final stage of his research, the Special Rapporteur is in a position to approach the other cases in question according to the pattern described below.

159. A first series of situations, including those of the Lubicon Cree and the Gitksan and Wet’suwet’en in Canada, should actually be considered under the category of possible constructive arrangements, provided certain aspects of their situation can be resolved at an early stage in mutually acceptable terms.

160. The case of the Indigenous peoples of Australia might actually be addressed through a process of treaty-making, assuming the so-called Makarrata (or treaty), called for by the Indigenous parties since 1980 remains a running issue. 51Nevertheless, this Makarrata should also be viewed, not only against the backdrop of the so-called reconciliation process launched by the Australian federal government in 1991 by virtue of the Council for Aboriginal Reconciliation Act but also in light of recent judicial and legislative developments, most prominently the Mabo (No. 2) judgment of the Australian High Court (1992) and the Native Title Act enacted at the federal level in 1993.

161. In the case of the so-called rancherias in California, its relevance hinges mainly on the failure of the State party to ratify texts already negotiated with the peoples concerned and should therefore also be considered as a situation of eventual reemergence and proper implementation of treaties.

162. Considering the above, the Special Rapporteur has been led to believe that other cases of the failure of State bodies to ratify treaties negotiated at some point in history with Indigenous parties, ought to be re-examined at the appropriate level, with a view to determine the actual possibility of bringing the ratification process to completion.

163. By virtue of the so-called Apology Bill enacted by the Congress of the United States (P.L. 103-150, of 1993), among other reasons, the situation of the Indigenous Hawaiians takes on a special complexion now. The Apology Bill recognises that the overthrow of the Hawaiian monarchy in 1898 took place unlawfully. By the same token, the 1897 treaty of annexation between the United States and Hawaii appears as an unequal treaty that could be declared invalid on those grounds, according to the international law of the times.

164. It follows that the case of Hawaii could be re-entered on the list of non-self-governing territories of the United Nations and resubmitted to the bodies in the Organisation competent in the field of decolonisation.

165. To the actual knowledge of the Special Rapporteur, still in connection with the list of cases considered above, only the Yanomami of Brazil, the Maya of Guatemala, the San (Botswana), and the Ainu (Japan) are examples of Indigenous peoples who never actually entered into consensual juridical relations with any State.

166. The question of whether, and in what manner each of these Indigenous peoples should seek a negotiated agreement — or any other freely agreed-to formula with the States in which they now reside — remains to be addressed on a case-by-case basis with adequate Indigenous input.

167. Particular consideration should be given, in these cases, to the practical day-to-day consequences (sometimes grave) of the lack of such agreements for their juridical and political status in the mixed societies in which they now live, and for the preservation, promotion and effective realisation of their historical rights as peoples, including their human rights and freedoms.

Weiter zu Chapter III: A look at the present: Origin, development and consequences of the domestication process
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