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Chapter IV: Looking ahead: Conclusions and recommendations

250. The Special Rapporteur has a number of elements to be duly taken into account at the time of formulating Conclusions and Recommendations in this Final Report. The most important are the following:

• a) His own mandate, as established by Commission on Human Rights Resolution 1988/56 and ECOSOC decision 1988/134;
• b) The outline of the Study⁵³ submitted to the working Group’s parent bodies and explicitly or implicitly endorsed by them, and
• c) The issues mentioned in the 1982 Martínez Cobo Report as possible questions to be elucidated in a Study such as the one now ending.

251. As far as his mandate is concerned, it must be recalled that the main purpose of the Study is to analyse the potential utility of treaties, agreements and other constructive arrangements between Indigenous peoples and Governments for the purpose of ensuring the promotion and protection of the human rights and fundamental freedoms of those peoples.

252. His terms of reference also instructed the Special Rapporteur to pay “particular attention to the ongoing development of universally relevant standards and the need to develop innovative, forward-looking approaches…” to the relationship between Indigenous peoples and Governments. In doing so, he was to take into account the inviolability of the sovereignty and territorial integrity of States, as well as the socio-economic realities existing in them. The mentioning of “the ongoing development of universally relevant standards” obviously referred to the process of elaborating a Draft Declaration on the Rights of Indigenous Peoples begun in the working Group in 1985.

253. Regarding the Draft Declaration, the Special Rapporteur has taken its provisions as a basic point of reference for his Conclusions and Recommendations, notwithstanding the fact that the process for its final adoption is still unfinished. He has taken very much into account the fact that its text, as it now stands, was adopted after long years of deliberation both in the working Group and for some time in the Sub-Commission as well, with ample participation of both Indigenous representatives and Government delegations.

254. As far as issues recognised in the 1988 outline as elements to be addressed at the end of the Study, the Special Rapporteur identified the role of treaties in European expansion overseas (already dealt with in Chapter III supra); the contemporary significance of treaties, agreements, and other constructive arrangements, including questions related to State succession, national recognition of said instruments, as well as the views held by Indigenous peoples on them. In addition, the outline identified three main sources that were to guide both the process of data gathering and his Conclusions and Recommendations, i.e., public international law, the municipal law of present-day States (including decisions. by municipal courts), and Indigenous juridical views (in particular, on societal authority, treaties, and treaty-making in general).

• Special Rapporteur Martínez Cobo thought it convenient to explore further issues as relevant as the areas covered today by the provisions of treaties and other international legal instruments involving Indigenous peoples, whether or not they are observed, the consequences for Indigenous peoples of their implementation or lack thereof (an issue also dealt with in Chapter III supra), as well as the present status of those legal instruments involving Indigenous peoples.

255. At this point in time, the Special Rapporteur is prepared to offer, first, some general Conclusions applicable to the issues of the Study as a whole; and then to provide more specific Conclusions regarding the two main categories of currently existing situations under which Indigenous peoples live in multinational societies: those in which treaties, agreements or other constructive arrangements exist, and those lacking such juridical instruments.

256. The first general Conclusion concerns the issue of recognition of Indigenous peoples’ right to their lands and their resources and to continue engaging, unmolested, in their traditional economic activities on those lands. This is the paramount problem to be addressed in any effort to establish a more solid, equitable, and durable relationship between the Indigenous and non-indigenous sectors in multinational societies. Due to their special relationship — spiritual and material — with their lands, the Special Rapporteur believes that very little or no progress can be made in this regard without tackling, solving, and redressing — in a way acceptable to the Indigenous peoples concerned — the question of the uninterrupted dispossession of this unique resource, vital to their lives and survival.

257. The primacy of this issue is reflected, not only in the data gathered for the Study and in the personal testimony heard by the Special Rapporteur, but also in the debates held in the Working Group and other international fora. The fact that more than a dozen articles of the Draft Declaration deal with the question of land rights and the concerns recently expressed by Vatican sources⁵⁴ on the violence and discrimination exerted, up to the present, against Indigenous peoples to deprive them of their lands, are also proof of the above.

258. There is another Conclusion closely related to the previous one. It is that, not only the land rights issue, but, in general, the entire Indigenous problematique and its possible overall solution cannot be approached exclusively on the basis of juridical reasoning. The problems confronted in a sizeable number of multinational States are essentially political in essence. Thus considerable political will is required from all involved parties, but in particular from the non-indigenous political leadership of modern States, if they are to be resolved through forward-looking new approaches. Juridical discussions and argumentation simply take too long, require copious resources (which the Indigenous side almost always lacks or has only in limited amounts), and in many cases are prejudiced by centuries of sedimented rationale. In addition, the urgency of the existing problems simply leave no room to engage, at the threshold of the 21st century, in the type of juridico-philosophical debates which Las Casas and Sepulveda pursued in the 16th century.

259. The Special Rapporteur is fully convinced that the overall Indigenous problematique today is also ethical in nature. He believes that humanity has contracted a debt with Indigenous peoples because of the historical misdeeds against them. Consequently, these must be redressed on the basis of equity and historical justice. He is also very much aware of the practical impossibility to take the world back to the condition existing at the beginning of the encounters between Indigenous and non-indigenous peoples five centuries ago. It is not possible to undo all that has been done (both positive and negative) in this time lapse, but this does not negate the ethical imperative to undo — even at the expense, if need be, of the straitjacket imposed by the unbending observance of the “rule of [non-indigenous) law”) — the wrongs done, both spiritually and materially, to the Indigenous peoples.

260. The Special Rapporteur also harbours no doubts concerning the much debated issue of the right to self-determination. Indigenous peoples, like all peoples on earth, are entitled to that inalienable right. The United Nations Charter in Article 1 gives blanket recognition of this right to all peoples (enshrining it as a principle of contemporary international law) as does Article 1 common to both International Covenants on Human Rights. This right is also expressly recognized for Indigenous peoples in Article 3 of the Draft Declaration.

261. In his view, any contradiction that may emerge between the exercise of said right by Indigenous peoples in present-day conditions and the recognised right and duty of the States in which they now live to protect their sovereignty and territorial integrity, should be resolved by peaceful means — first and foremost via negotiations — through adequate conflict-resolution mechanisms (either existing or to be established); preferably within the domestic jurisdiction and always, with effective participation by Indigenous peoples. We will return to this issue at a later stage in this same Chapter.

262. Regarding the question of whether or not Indigenous peoples can be considered as nations — in the sense of contemporary international law — in the context of countries where some Indigenous peoples have been formally recognized as such (by non-indigenous nations at the beginning of their contacts, or at a later stage) through international legal instruments, such as treaties, and other peoples/nations have not, the Special Rapporteur believes it is pertinent to distinguish between those two situations, although the final analysis may lead to the same conclusion. More on this infra, paragraphs 270-271 and 289-293.

263. In reviewing the cases selected for analysis by the Special Rapporteur, he has been led to conclude that the vast majority either describe situations of actual conflict between the Indigenous and non-indigenous sectors of society, or contain the seeds of a conflict that could erupt unexpectedly because of issues that have simmering without appropriate solution for a long period, perhaps even centuries. The developments in Oka (Québec) in 1991, Chiapas (Mexico) in 1994, and in various communities in Australia in 1997 are examples of that potential.

264. Another general Conclusion to be made is that, as recognized in the Draft United Nations Declaration on the Rights of Indigenous Peoples⁵⁵ submitted by the Working Group to the Sub-Commission and adopted by the latter, ⁵⁶all the human rights and freedoms recognised in international instruments — either legally binding norms or non-binding standards — accepted by the State in which they now live, are applicable to Indigenous peoples and individuals now living within their borders. This also applies to all rights and freedoms recognised in the domestic legislation of the State concerned, for all individuals and social groups under its jurisdiction. In the view of the Special Rapporteur this is so, provided that the manner in which said rights and freedoms are recognised in said instruments is, in fact, consistent with Indigenous customs, societal institutions, and legal traditions.

265. On the other hand, the Special Rapporteur is inclined to argue in favour of the proposition that treaties/agreements or constructive arrangements do have the potential to become very important tools for formally establishing and implementing (because of their consensual basis) not only those very same rights and freedoms alluded to in the preceding paragraph, but also the ancestral inalienable rights — in particular, their land rights — in the specific context of a given society.

266. On the basis of a vast amount of documentation, the work of the Working Group, and oral testimony heard by the Special Rapporteur, he has reached the Conclusion that there is an almost unanimous opinion among geographically-dispersed Indigenous peoples on the inability of existing State mechanisms, either administrative or judicial, to satisfy their aspirations and hopes for redress.

267. Likewise, he also has reasons to conclude that there is a widespread desire on the Indigenous side to establish (or reestablish) a solid, new, and different kind of relationship, quite unlike the almost constantly adversarial, often acrimonious relations it has had until now with the non-indigenous sector of society in the countries where they coexist. In their view this can only be achieved either by the full implementation of the existing mutually agreed-upon legal documents governing that relationship (and a common construction of their provisions), or by new instruments negotiated with their full participation. This perception is shared by the appropriate government officials in a number of countries, including Canada, New Zealand, and Guatemala.

268. Finally, the Special Rapporteur is strongly convinced that the process of negotiation and seeking consent inherent in treaty-making (in the broadest sense) is the most suitable way of, not only securing an effective Indigenous contribution to any effort toward the eventual recognition or restitution of their rights and freedoms, but also of establishing much needed practical mechanisms to facilitate the realisation and implementation of their ancestral rights and those enshrined in national and international texts. It is thus the most appropriate way to approach conflict-resolution of Indigenous issues at all levels with Indigenous free and educated consent.

269. In his view, it is also the most suitable way to effectively implement the appeal addressed to Governments by the 1993 Vienna World Conference on Human Rights to guarantee the full and free participation of Indigenous peoples in all aspects of society, particularly in issues of their concern.⁵⁷

270. In the case of Indigenous peoples having concluded treaties or other legal instruments with the European settlers and/or their continuators in the colonisation process, the Special Rapporteur has not found any sound legal argument to sustain the position that they have lost their international juridical status as nations. The treaty provisions which — according to the non-indigenous version and construction — contain express renunciations by Indigenous of their attributes as subjects of international law (particularly, jurisdiction over their lands and unshared control of their political power and institutions) are strongly challenged by most Indigenous peoples whom he has consulted.

271. Their rejection is based either on the existence of an invalid consent obtained by fraud and/or induced error as to the object and purpose of the compact, or on their ancestors’ total lack of knowledge of the very existence of such stipulations in the compact, or on the fact that their ancestral traditions and culture simply would not allow them to relinquish such attributes (particularly those related to lands and governance).

272. The State parties to those compacts — who have benefited the most from gaining jurisdiction over former Indigenous lands — argue that those attributes were indeed relinquished, on the basis of provisions of their domestic legislation and decisions of their domestic courts, as well as on the realities of today’s world, and of the historical developments leading to the present situation. However, the principle that no one can go against their own acts is as old as ancient Rome and was valid as a general principle of law at the time of the dispossession.

273. In connection with the above, the Special Rapporteur is very aware of the non-retroactivity of the 1969 Vienna Convention on the Law of Treaties⁵⁸, entered into force in 1980. A sizeable number of States with Indigenous peoples living within their present borders are Parties to it. Notwithstanding, he has also borne in mind the fact that the text adopted in Vienna has to do not only with the development of new rules and concepts in international law, but also with the codification of those which had survived the test of time and were, in 1969, already part and parcel of international law, either as customary law or as positive law as embodied in a number of already-existing bilateral and/or multilateral international instruments.

274. He believes that the content of its Article 27 (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty…”) was already a rule of international law at times when the process leading to the disenfranchisement and dispossession of Indigenous peoples’ sovereign attributes was taking place, despite treaties to the contrary concluded with them in their capacity as recognised subjects of international law.

275. This leads to the issue of whether or not treaties and other legal instruments concluded by the European settlers and their successors with Indigenous nations currently continue to be instruments with international status in light of international law.

276. The Special Rapporteur is of the opinion that said instruments indeed continue to maintain their original status, and to be fully in effect and consequently, are sources of rights and obligations for all the original parties to them (or their successors), who shall fulfill their provisions in good faith.

277. The legal reasoning supporting the above Conclusion is very simple and the Special Rapporteur is not breaking any new ground in this respect. Treaties without an expiration date are to be considered as continuing in effect until all the parties to it decide to terminate them, unless otherwise established in the text of the instrument itself, or unless, its invalidity is declared. This is a notion that has been deeply ingrained in the conceptual development, positive normativity, and consistent jurisprudence of both municipal and international law since the times in which Roman Law was at its zenith more than five centuries ago, when modern European colonization began.

278. As a result of his research, the Special Rapporteur has ample proof that Indigenous peoples/nations who have entertained treaty relationships with non-indigenous settlers and their continuators, strongly argue that those instruments not only continue to be valid and applicable to their situation today but are a key element for their survival as distinct peoples. All those consulted — either directly in mass meetings with them, or in their responses to the Special Rapporteur’s questionnaire, or by direct or written testimony — have clearly indicated their conviction that they indeed remain bound by the provisions of those instruments that their ancestors, or they themselves, concluded with the non-indigenous peoples.

279. Competent authorities in some countries — e.g. Canada and New Zealand — have also told the Special Rapporteur that their respective Governments too consider their treaties with Indigenous peoples to remain fully valid and in effect (albeit, they differ radically from their Indigenous counterparts regarding construction of the contents).

280. Nonetheless, the Special Rapporteur has been able to ascertain — in the course of his research and in situ observation —, a large number of obvious, serious violations of the legal obligations undertaken by the State party to those instruments (in particular, to the so-called “historic treaties” and to legal commitments involving Indigenous lands) in practically all stages of the process of domestication described in Chapter III, particularly in the second half of the 19th century.

281. Probably the most blatant case in point is the United States Federal Government’s taking of the Black Hills (in the present day state of South Dakota) from the Sioux Nation during the final quarter of the last century. The lands which included the Black Hills had been reserved for the Indigenous nation under provisions of the 1868 Fort Laramie Treaty.⁵⁹ It is worth noting that in the course of the litigation prompted by this action, the Indian Claims Commission declared⁶⁰ that “A more ripe and rank case of dishonourable dealing will never, in all probability, be found in our history,…” and that, both that Court of Claims, in 1979, and the Supreme Court of that country⁶¹ decided that the U.S. Government had unconstitutionally taken the Black Hills in violation of the U.S. Constitution. However, U.S. legislation empowers Congress, as the trustee over Indian lands, to dispose of said property including its transfer to the U.S. Government. Since the return of lands improperly taken by the Federal Government is not within the province of the courts but falls only within the authority of the Congress, the Supreme Court limited itself to establishing a $17.5 million award (plus interest) for the Sioux. The Indigenous part, interested not in money but in the recovery of the lands — possessing a very special spiritual value for them — has refused to accept the monies, which remain undistributed in the U.S. Treasury, according to the information available to the Special Rapporteur.

282. It is well known that fulfilment, in good faith, of legal obligations that are not in contradiction with the United Nations Charter (Article 2-2) is considered to be one of the tenets of present day positive international law and one of the most important principles ruling international relations; being as it is, a peremptory norm of general international law (jus cogens). Of course, Article 26 of the Vienna Convention on the Law of Treaties has enshired the principle of pacta sunt servanda as the cornerstone of the law of treaties, and mention has already been made above of. the importance of its Article 27.

283. It should also be borne in mind, that the Draft United Nations Declaration on the Rights of Indigenous Peoples expresses the same cqncept with particular emphasis. In article 36, it establishes that “Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors, according to their original spirit and intent, and to. have States honour and respect such treaties, agreements and other constructive arrangements.”

284. On the other hand, the unilateral termination of a treaty or of. any other international legally binding instrument, or the non-fulfilment of the obligations contained in its provisions, has been — and continues to be — unacceptable behaviour according to both the Law of Nations and more modern international law. The same can be said with respect to the breaching of treaty provisions. All these actions determine the international responsibility of the State involved. Many nations went to war over this type of conduct by other parties to mutually agreed upon compacts, during the period (from the 16th to the late 19th century) when the colonial expansion of the European. settlers and their successors was at its peak.

285. The Special Rapporteur has also concluded that a number of current conflict situations respecting Indigenous treaty/agreement issues have to do with substantial differences in the construction of their provisions; in particular, those related to the object and purpose of the compact in question. A relevant case is the Treaty of Waitangi. The Maaori and Pakeha constructions of it differ in matters as crucial as the alleged “transfers” of governance/sovereignty powers and “land title” to the non-indigenous settlers, as well as on the actual purpose of the compact itself. A well known scholar⁶² has described how the main British negotiator, having been instructed to secure British sovereignty over Maaori lands in order to exercise exclusive control over them so as to proceed with peaceful colonisation, deliberately blurred the meaning of the term sovereignty and hid from the Maaori parties the fact that the cession they were agreeing to would ultimately mean a significant loss of Maaori power. Despite the Maaori’s confident belief that the treaty had confirmed their right to property, even the more important rights of rangatiratanga would ultimately have to give way to Crown authority.

286. It should be taken into account that indigenous practices of treaty-making were totally oral in nature and written documents were absent from this process. In addition, it was extremely difficult to fully follow all aspects of the negotiations through translators (who, most likely, were not always perfectly accurate), not to mention the fine print in the written version submitted to them, in the alien language, by the non-indigenous negotiators. Further, it was impossible for them, in most instances, to produce a written copy with their understanding of the rights and obligations established in said instruments.

287. The Special Rapporteur considers it important to stress that his research revealed that treaties, in particular, concluded with Indigenous nations, have frequentlyplayed a negative role with respect to Indigenous rights. On many occasions they have been intended — by the non-indigenous side — to be used as tools to acquire “legitimate title” to the Indigenous lands by making them formally “extinguish” those and other rights as well. In a document personally submitted by one respected Indigenous chief, ⁶³on behalf of his nation, it is noted that treaties on occasion are used to force Indigenous peoples to bargain away their ancestral and treaty rights.

288. Finally, considering the very limited data available to him, at this final stage of the Study, with respect to treaties between States affecting Indigenous peoples as third parties, the Special Rapporteur can offer only the preliminary Conclusion that, according to all evidence there is no acceptance by the affected Indigenous parts of the obligations included in their provisions, ⁶⁴nor any participation by them in the implementation of such treaties.

289. Something must now be said with respect to the situation of Indigenous peoples who have never been formally recognized as nations by means of negotiated and formalised international juridical instruments with non-indigenous States. Particular attention should be paid to the issue of whether or not they continue to retain today their status as nations in the light of contemporary international law. The key question to be posed in this respect, in the view of the Special Rapporteur, is: By what means could they possibly have been legally deprived of such a status, provided their condition as nations was originally unequivocal and has not been voluntarily relinquished?

290. The Special Rapporteur is of the opinion that to link the determination of the “original” legal status of Indigenous peoples as nations (in the contemporary sense of international law) or as “no-nations” to the single factor of whether or not they have formalised relations with non-indigenous colonising powers, is faulty. Not only does it go against the tenets of natural law but, it is also illogical. The fact that some of them did not have juridical relations with the colonial powers — in many cases, during the early stages of a colonising project, simply because the newcomers did not happen across their path — does not appear sufficient reason to establish such a drastic differentiation between their rights and the rights of those who did.

291. It is important to recall that modern non-indigenous law long ago dispelled the theory advocating that the absence of formal legal/political recognition from one sovereign entity (or a group of them) could determine both the existence of and the juridical international status of another. The. theory was thrown out as an aberration vis á vis the principles of sovereignty and equal rights of all States. International entities, unrecognised by some members of the international community, continue nevertheless to exercise their attributes as subjects of international law and in doing. so may entertain relations with all other interested international subjects. All that is required for this is that the entities possess the necessary elements to be considered international subjects: territory, population, an institutionalized form of government, and thus, the capacity to conclude international agreements.

292. In addition, other non-juridical theories serving as the basis for depriving Indigenous peoples, in general, of their original international status have also been discarded in light of the new perceptions and theoretical elaborations of modern international law. For example, the concept of terra nullius was formally put to rest by the International Court of Justice in its advisory opinion in the Western Sahara case, ⁶⁵as well as by the well-known 1992 Mabo v. Queensland decision⁶⁶ handed down by Australia’s High Court. Further, the international community has widely repudiated the deprivation of such a status by conquest and armed force. The provisions to that effect in the organization of American States Charter and Article 2-4 of the United Nations Charter prove that contemporary international law rejects the notion that force and conquest may bestow rights.

293. Hence, the Special Rapporteur is of the opinion that should these Indigenous people who never entered into formal juridical relation — via treaties or otherwise — with non-indigenous powers as did other Indigenous peoples living in the same territory wish to claim for themselves juridical status also as nations, it must be presumed — until proven otherwise — that they do continue to enjoy such a status. Consequently, the burden to prove otherwise falls on the party challenging their status as nations. In any possible adjudication of such an important issue, due attention should be given to an evaluation of the merits of the juridical rationale advanced to support the argument that the Indigenous people in question somehow have lost their original status.

294. Having presented in the first part of this Chapter, the Conclusions of this Study, the Special Rapporteur will proceed to his final Recommendations. As was the case when drafting his Conclusions, the Special Rapporteur deems it necessary to recall certain general points of reference — advanced at earlier stages of his work — that should now guide the formulation of these Recommendations.

295. The Special Rapporteur considers it useful to recall that according to his mandate this Study was not to be limited to an analysis of past legal instruments and their contemporary significance, nor to a review of whether or not they are being currently implemented, regardless of the value that such a review might have for both the present and the future.

296. If such an historical overview has been given such an ample treatment in Chapter III supra, it is because the Special Rapporteur felt this would help to obtain a well-informed forward looking approach to the key issue, that is, the need “to evaluate the extent to which the conclusion of new treaties, agreements and other constructive arrangements between Indigenous populations and States may contribute effectively to the development of more solid, lasting and equitable bases for the relationships that will necessarily have to continue to exist between Indigenous populations and States.”

297. Also to be borne in mind is that the Special Rapporteur has identified the ultimate purpose of his mandate as offering elements toward “the achievement, on a practical level, of the maximum promotion and protection possible, both in domestic and international law, of the rights of Indigenous populations and especially of their human rights and fundamental freedoms,”⁶⁷ by means of creating new juridical standards, negotiated and approved by all the interested parties, in a process tending to contribute to the building of mutual trust⁶⁸ based on “good faith, mutual understanding of the other parties’ vital interests, and deep commitment from all of them to respect the eventual results of the negotiation”.⁶⁹

298. In this context it is useful to reiterate a point noted earlier in this Chapter (supra, para. 263): most of the cases/situations reviewed by the Special Rapporteur concerned either actual conflict situations by definition, or have the potential to erupt into one at any time and under the most unexpected circumstances.

299. In this context, the need to encourage and nurture and not always easy process of confidence-building can never be overemphasized. It is a process that requires both the taking of positive steps as well as the avoiding of actions that would exacerbate existing situations. The first Recommendation of the Special Rapporteur has to do with this much needed process.

300. Steps such as the one taken years ago by Australian Prime Minister Robert Hawke recognising the misdeeds committed by the first settlers against the Aborigines, the recent admissions by the Vatican on certain aspects of the role played by the Catholic Church at various stages of the colonisation of Latin America, the 1993 Apology Bill passed by the U.S. Congress with respect to Hawaii, and the establishment by the Government of Mexico of peaceful conflict-resolution mechanisms to deal with the events in Chiapas (1994) are positive developments in that direction. The Governments of those countries should be encouraged to have an effective follow-up to those initial steps. Other Governments, under similar circumstances, are called upon to be bold enough to undertake like steps in their specific societal context.

301. By the same token, actions that previsibly will aggravate existing situations, or create new conflicts, should be avoided, or subjected to an immediate sine die moratorium. Examples of what should not be done, in the view of the Special Rapporteur, abound. forced evictions (as in the case of the Navajo Nation in Arizona), the creation of conditions of duress for Indigenous peoples to induce them to accept conditions for negotiating (among others, the case of the Lubicon Cree in Alberta), the fragmentation of Indigenous nations to pit them against each other (as in cases in the North Island of Aotearoa/New Zealand), the ignoring and by-passing of the traditional authorities by promoting new authorities under non-indigenous regulations (as in a number of cases in the U.S.), the continuation of “development projects” to the detriment of the Indigenous habitat (case of the Bio-Bio River in Chile), and attempts to launch major diversions to redirect the focus on individual rights as opposed to collective-communial rights (as denounced by the Haudenosaunee Confederacy), and many others should be carefully avoided.

302. This is consistent with one of the key traits of the original approach by the Special Rapporteur as to what was to be the thrust of his Conclusions and Recommendations. Namely to contribute to fostering new relations based on mutual recognition, harmony and cooperation, instead of an attitude of ignoring the other party, confrontation and rejection.

303. Regarding Recommendations to fully ascertain and properly channel the recognised potential of treaties/agreements and other constructive arrangements, as well as of treaty-making (again in its broadest sense) as elements for the regulation of more positive and less antagonistic future relationships between Indigenous peoples and States, due account should be taken of two processes already addressed by the Special Rapporteur in the progress of his work, viz. 1) the history of treaty relations between Indigenous peoples and States, especially the lessons to be drawn from an analysis of the process of domestication in the context of former European settler colonies (vid. supra, Chapter III); and 2) the rationale presiding over ongoing negotiations and certain political processes developing between States and Indigenous peoples in various countries.

304. As far as the first of the two processes mentioned above, the main lesson to be drawn from history concerns the problems of treaty enforcement and implementation. The Special Rapporteur will offer a number of Recqmmendations on this key issue.

305. It is only too obvious that the problem in this area does not lie in the lack of provisions but rather in the failure of the State party to comply with those provisions. A case in point is that of the United States, the country with the largest number (approximately 400) of acknowledged treaties concluded with Indigenous nations, most of them forced into oblivion by unilateral actions by either Federal authorities or the Congress.

306. History demonstrates the existence of a wide array of means at the disposal of the State bodies — including the judiciary — to unilaterally disregard treaty provisions that place a burden on the State; a disregard that goes hand in hand with the observance of provisions that are favourable to the State party.

307. Regarding the rationale of present-day negotiations and other political contacts between States and Indigenous peoples, two observations need to be; made. The first regards what may be termed non-negotiables, for example the principle of extinguishment of so-called native title as a condition for the settlement of Indigenous claims. It remains to be seen to what extent the existence of such non-negotiables — if imposed by State negotiators — compromises the validity of, not only the agreements already reached but also that of those to come. The free consent of Indigenous peoples, essential to make these compacts legally sound, may be seriously jeopardised by this particularly effective condition of duress.

308. The second observation concerns the issue of “self-government” and “autonomy” being offered, in certain cases, as a substitute for the full exercise of ancestral rights related to governance, which are now to be extinguished. In order to avoid new problems in the future, the Special Rapporteur feels the need to recommend that the possible advantages and disadvantages of such regimes be carefully assessed by both parties — but in particular, by the Indigenous side — in light of the history of treaty-making and treaty implementation and observance resulting from past negotiations between Indigenous nations and States.

309. For the same reasons, it is especially important to fully assess (or reassess), with the same point of reference, the relevance and potential utility of the quasi-juridical category of “constructive arrangements” for Indigenous peoples still deprived of any formal and consensual relationship with the States in which they now happen to live.

310. Regarding Recommendations on yet another issue crucial to the forward-looking aspects of this Study, it must be noted that the Special Rapporteur, at the beginning of his work, singled out three elements that deserved investigation with respect to mechanisms of conflict-resolution. Those three elements were: 1) the actual capability of existing mechanisms to deal promptly and, preferably, in a preventive manner with conflict situations; 2) the “sensitive issue” of national versus international jurisdiction, and 3) the manner in which the effective participation in these mechanisms by all parties concerned — in particular of Indigenous peoples — is to be secured.⁷⁰

311. In another part of this same report (supra, para. 266) the Special Rapporteur noted the generalised opinion that in light of the situation endured by Indigenous peoples today, the existing mechanisms, either administrative or judicial, within the non-indigenous spheres of government have been incapable of solving their difficult predicament. This forces him to advance a number of recommendations on this subject.

312. He first recommends the establishment within States with a sizeable Indigenous population of an entirely new, special jurisdiction to deal exclusively with Indigenous issues, independent of existing governmental (central or otherwise) structures, although financed by public funds, that will gradually replace the existing bureaucratic/administrative government branches now charge of those issues.

313. This special jurisdiction, in his view, should have four distinct specialised branches (permanent and with adequate professional staffing): 1) an advisory conflict-resolution body to which all disputes — including those related to treaty-implementation — arising between Indigenous peoples and non-indigenous individuals, entities and institutions (including Government institutions) shall be mandatorily submitted, empowered to encourage and conduct negotiations between the interested parties and to issue the recommendations considered pertinent to resolve the controversy; 2) a body to draft, through negotiations with the Indigenous peoples concerned: a) new juridical bilateral, consensual, legal instruments with the Indigenous peoples interested, and b) new pieces of legislation and other proposals to be submitted to the proper legislative and administrative government branches, so as to gradually create a new institutionalised legal order applicable to all Indigenous issues, and according to their needs; 3) a judicial collegiate body, to which all cases that after a reasonable period of time have not been resolved through the recommendations by the advisory body, shall be mandatorily submitted after a reasonable period of time, empowered to adjudicate on them, and capable of making its final decisions enforceable by making use of the coercive power of the State, and 4) an administrative branch in charge of all logistical aspects of Indigenous-non indigenous relations.

314. The Special Rapporteur is fully aware of many of the obstacles that such an innovative, far-reaching approach might have to face. In fact, and to mention only one, it is not difficult to appreciate the many vested interests that might be affected by the redundancy of the structures now existing to deal with Indigenous issues in many countries. Only strong political determination — particularly on the part of the leadership of the non-indigenous sector of the society — can make it viable. One other essential element is also clear: the effective participation of Indigenous peoples — preferably on an equitable basis with the non-indigenous people — in all four of the recommended branches is absolutely central to the “philosophy” presiding over the Special Rapporteur’s overall approach to this question.

315. It is obvious that the above described is but a mere sketch of the new institutionality recommended. Much lies ahead in terms of filling its quite visible lacunae. While the Special Rapporteur does not lack ideas on how to fill some of the gaps, he has considered it wise to allow for the required fine-tuning to be done at a later stage, around a negotiating table, by the interested parties themselves in the different countries. The way in which such a negotiation process is organised and conducted may well be the true litmus test of the eventual merits of his recommendation and of the eventual viability of the structure proposed, in a given socio-political context.

316. In advancing the recommendations set forth above, the Special Rapporteur has benefited from the highly interesting ideas on this very same subject formulated in its final report (1996) by the Royal Commission on Aboriginal Peoples established by the Government of Canada in its final report (1996).⁷¹

317. While it is generally held that contentious issues arising from treaties or constructive arrangements involving Indigenous peoples should be discussed in the domestic realm, the international dimension of the treaty problematic nevertheless warrants proper consideration.

318. A crucial question relates to the desirability of an international adjudication mechanism to handle claims or complaints from Indigenous peoples, in particular those arising from treaties and constructive arrangements of an international status.

319. The Special Rapporteur is quite familiar with the reticence expressed time and again, by States toward the question of taking these issues back to open discussion and decision-making by international fora. In fact, he might even agree with them that, on certain isues (e.g. disputes not related to treaty implementation and observance) it would be more productive to keep their review and decision exclusively within their domestic jurisdiction until this is completely exhausted.

320. However, he is of the opinion that one should not dismiss outright the notion of possible benefits to be reaped via the establishment of an international body (e.g. the proposed Permanent Forum of Indigenous Peoples) that, under certain circumstances, might be empowered — with the previous blanket acqujesence (or on an ad hoc basis) of the State concerned — to take charge of final decision in a dispute between the Indigenous peoples living within the borders of a modern State and non-indigenous institutions, including State institutions.

321. At any rate, the Special Rapporteur recommends that a United Nations-sponsored workshop be convened — at the earliest possible date, and within the framework of the International Decade of Indigenous Populations —, to open an educated discussion on the possible merits and demerits of the establishment of such an instance.

322. One last point on the subject: with the growing international concern about all human rights and related developments, one element appears very clear in the mind of the Special Rapporteur: the more effective and developed the national mechanisms for conflict-resolution on Indigenous issues are, the less need there will be for establishing an international body for that purpose. The opposite is also true: the non-existence, malfunctioning, anti-Indigenous discriminatory approaches, or ineffectiveness of those national institutions will provide more valid arguments for international options. This may be one of the strongest arguments possible for the establishment (or further strengthening) of proper, effective internal channels for the implementation/observance of Indigeous rights and conflict-resolution of Indigenous-related issues.

323. Another Recommendation which seems timely to address to State institutions empowered to deal with Indigenous issues, is that when in the decision-making process on issues of interest to Indigenous peoples, they should apply and construct (or continue to do so) the provisions of the national legislation and international standards and instruments in the most favourable way for Indigenous peoples; particularly, in cases related to treaty rights. In all cases of treaty/agreements/constructive arrangements relationships, the interpretation of the Indigenous party on the provisions of said instruments should be accorded equal value as that granted to non-indigenous versions of the same documents.

324. The Special Rapporteur also recommends — in the existence of treaties/agreements relations between Indigenous peoples and States — the fullest possible implementation in good faith of their provisions from the perspective of seeking both justice and reconciliation. In the event that the very existence (or present day validity) of a treaty becomes a matter of dispute, a formal recognition of that instrument as a legal point of reference in the State’s relations with the peoples concerned should be a step which will greatly contribute to a process of confidence-building that may bring substantial benefits. In this context, the completion of the ratification process of draft treaties/agreements already fully negotiated with Indigenous people is strongly recommended by the Special Rapporteur.

325. In the event of obligations established in bilateral or multilateral treaties concluded by States — to which Indigenous peoples are third parties — that may affect those peoples, the Special Rapporteur recommends that the State parties to said instruments seek the free and educated acquiescence of the Indigenous party before attempting to enforce said obligations.

326. The Special Rapporteur further recommends State authorities not to take up or continue to engage in development projects that may impair the environment of Indigenous lands and/or adversely affect their traditional economic activities, religious ceremonies or cultural heritage, without previously commissioning the appropriate ecological studies to determine the actual negative impact those projects will have.

327. Finally, in connection with the Indigenous affairs related activities of the Office of the United Nations High Commissioner for Human Rights/Centre for Human Rights, the Special Rapporteur offers the following recommendations:

• a) A substantial increase in the permanent staff assigned to carry out such activities;
• b) The establishment, at the earliest possible date, of a section within the United Nations Treaty Registry in charge of locating, compiling, registering, numbering and publishing all treaties concluded between Indigenous peoples and States. Due attention should be given in this endeavour to secure access to the Indigenous oral version of said instruments;
• c) To convene, in the framework of the Programme of Action for the International Decade and at the earliest possible date, three workshops related to: the establishment of a international conflict-resolution mechanism on Indigenous issues, modalities for redressing the effects of the historical process of land dispossession suffered by Indigenous peoples and the implementation/observance of Indigenous treaty rights, and
• d) To promote the creation of an INTERNET page exclusively dedicated to Indigenous issues and the United Nations activities related to Indigenous interests.

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