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Introduction

1. In Volume V (Conclusions, proposals and recommendations) of Mr. Martínez Cobo’s monumental Study of the Problem of Discrimination Against Indigenous Populations,¹ the Special Rapporteur stressed the paramount importance for Indigenous peoples and nations in various countries and regions of the world of the treaties concluded with present nation-states or with the countries acting as colonial administering powers at the time in question.

2. He concluded that a thorough and careful study should be made of various areas covered by the provisions of such treatiesand agreements, the official force of such provisions at present, the observance, or lack of observance, of such provisions, and the consequences all this may entail for Indigenous peoples and nation parties to such treaties or agreements.

3. He further noted that in preparing such a study, account must necessarily be taken of the points of view of all parties involved, a task requiring the examination of an extremely large quantity of documentation. For obvious reasons, this was an undertaking that could not be carried out within the framework of his own Study.

4. He therefore recommended that a thorough Study devoted exclusively to this subject should be undertaken in light of existing principles and norms in the field and the opinions and data submitted by all interested parties, primarily the Governments and Indigenous nations and peoples that signed and ratified treaties or agreements. He believed that only a thorough study could help determine with the necessary accuracy the present status of international agreements involving Indigenous peoples.²

5. Taking up an initiative of its working Group on Indigenous Populations,³ at its thirty-ninth session, the Sub-Commission on the Prevention of Discrimination and Protection of Minorities acted upon Mr. Martínez Cobo’s recomendation by adopting resolution 1987/17 of 2 September 1987, entitled Study on treaties concluded between Indigenous peoples and states. In taking such action, the Sub-Commission was consistent with its resolution 1984/35-A of 30 August 1984, in which it had decided to consider Mr. Martínez Cobo’s conclusions, proposals and recommendations as an appropriate source for its future work on the question of discrimination against Indigenous populations and for the work of its working Group on Indigenous Populations.

6. In its resolution 1987/17, the Sub-Commission requested Mr. Miguel Alfonso Martínez “to prepare, on the basis of the opinions and data in Mr. Martínez Cobo’s report and the views expressed on this issue in the working Group … and in the Sub-Commission, a document analysing the general outline of such a study and the juridical, bibliographical and other information sources on which such a study should be based, and to submit the document to the Sub-Commission for consideration at its fortieth session.”

7. The resolution also recommended that the Commission on Human Rights recommend, in turn, that the Economic and Social Council (ECOSOC) authorise the Sub-Commission to appoint Mr. Alfonso Martínez as Special Rapporteur with the mandate of preparing such a study, and to request the Special Rapporteur to present a preliminary report to the Sub-Commission at its forty-first session (1989). The recommendations contained in resolution 1987/17 were submitted for consideration to the Commission on Human Rights at its forty-fourth session (1988).

8. At its forty-fourth session, the Commission adopted resolution 1988/56, in which a number of guidelines on this matter were established. These would eventually become the terms of reference for the Special Rapporteur’s mandate for the present study.

9. It should be noted that in adopting resolution 1988/56, the Commission broadened to a considerable extent the scope of the Study originally envisaged by the Sub-Commission in its resolution 1987/17, by recommending that ECOSOC authorise the appointment of Mr. Alfonso Martínez as Special Rapporteur, with the mandate of preparing “an outline on the possible purposes, scope and sources of a study to be conducted on the potential utility of treaties, agreements and other constructive arrangements between Indigenous populations and Governments for the purpose of ensuring the promotion and protection of the human rights and fundamental freedoms of Indigenous populations.” (Emphasis added)

10. Further, in adopting said resolution the Commission only authorised the Special Rapporteur to prepare and submit to the working Group an outline of a possible study, not to undertake the Study proper, as recommended by the Sub-Commission. In fact, it withheld its authority, at least until 1989, to decide the convenience of commissioning such a Study by the Special Rapporteur.

11. Commission resolution 1988/56 was endorsed on 27 May 1988 by ECOSOC in its decision 1988/134.

12. The Special Rapporteur complied with the request and submitted the outline⁴ to the working Group and the Sub-Commission later in 1988. Both bodies endorsed that document. In addition, in its resolution 1988/20 of 1 September 1988, the Sub-Commission also requested the Commission and ECOSOC to finally authorise the Special Rapporteur to undertake the Study referred to in the above-mentioned Commission resolution 1988/56.

13. At its forty-fifth session, the Commission adopted — without either debate or vote — resolution 1989/41 of 6 March 1989, by which it endorsed all the recommendations submitted on this matter by the Sub-Commission in resolution 1988/20. They were thus submitted for approval to the 1989 ECOSOC spring session.

14. Finally, ECOSOC formally authorised the beginning of this Study and confirmed the appointment of this Special Rapporteur for this undertaking by resolution 1989/77 of 24 May 1989.

15. From that date on, the Special Rapporteur has submitted to the working Group and the Sub-Commission a preliminary report⁵, and three progress reports.⁶

16. At its forty-ninth session the Sub-Commission adopted decision 1997/110 of 22 August 1997 by which it requested the special Rapporteur to submit his Final Report in due time (preferably before the end of 1997) so as to be examined by the working Group at its sixteenth session and by the Sub-Commission at its fiftieth session in 1998. This Final Report is submitted to the consideration of both bodies pursuant to the above mentioned Sub-Commission resolution 1997/110.

17. As to the contents of this Final Report, it should be recalled, first, that the Special Rapporteur suggested from the start of his mandate a three-part structure for the Study as a whole.

18. The first part was to analyse the origins of the practise of concluding treaties, agreements and other constructive arrangements between Indigenous peoples and States, that is, the role of treaties in the history of European expansion overseas. The second part was to be devoted to the contemporary significance of such instruments, including questions regarding the succession of States, national recognition of treaties, and the views of Indigenous peoples on these issues. The third part was to address the potential value of all those instruments as the basis for governing the future relationships between Indigenous peoples and States. Both the form and substance of such instruments were to be considered in the final stage of the Study, as well as possible mechanisms to be institutionalized in the future, to secure their implementation.⁷

19. This final part, obviously, had to be undertaken in the light of the actual situations under which Indigenous peoples find themselves coexisting today with other, non-indigenous segments of the society in many States. It is precisely the precarious nature of their existence almost everywhere, that today provokes — as it did when Martínez Cobo’s report was commissioned and completed — growing concern in the international community.

20. Largely, the Special Rapporteur’s research and analysis basically bear out his initial plan as far as the first two parts of the Study, as a whole, are concerned.

21. Obviously, at this final stage of the Special Rapporteur’s work on the Study, particular attention shall be given to the potential value of all possible ways and means to achieve a new relationship between the Indigenous and non-indigenous sectors in multinational societies through adequate forward-looking, innovative mechanisms that would facilitate conflict-resolution when needed.

22. That the Special Rapporteur has been working on this Study for nine years and the fact that this, its Final Report, should be able to stand on its own with respect to publication by the United Nations has made certain inclusions necessary. The Special Rapporteur has therefore briefly recapitulated here the most important provisional conclusions advanced in previous progress reports, as well as certain references to the initial (or modified) reasoning behind them. He has also included some references to key cases or general situations fully reviewed in those reports. Without this background it would be difficult to fully grasp the sense and possible merit of the Conclusions and Recommendations offered here.

23. Consequently, Chapter I deals with four main topics: the process of selecting (and eliminating) cases relevant to this Study; treaty and treaty-making concepts; the importance of fully understanding the evolution of the Indigenous/non-indigenous relationship and its present situation, and defining and differentiating between the categories “Indigenous peoples” and “minorities”. In Chapter II, the Special Rapporteur offers his views on the three juridical situations selected for their pertinence to the goals of this Study, focussing on the individual cases/situations selected for review in consideration of their juridical/institutional development. Chapter III describes the overall process of domestication of Indigenous issues in its various manifestations during different stages and links it to the present situation of Indigenous societies. Finally, Chapter IV brings all those elements included in previous chapters together, to offer his Conclusions and Recommendations for a look at what he considers might be a constructive approach to the future.

24. Lastly, a final remark about the contents of this Report.

25. It is worth underlining that the Special Rapporteur is fully aware that he — and only he — is ultimately responsible for the content of the Conclusions and Recommendations with which the present Study will end. However, he is also aware that all human endeavour may contain flaws, shortcomings, and other defects, and thus cannot but benefit from constructive criticism.

26. In this context, it can never be overemphasized that in many aspects and cases reviewed, the final result of these long years of work — as reflected in this document — is based, in the end, on the research (including field work), the personal and professional experiences, and, in particular, the criteria on the available sources that has been developed by only two persons: the Special Rapporteur, himself, and his Consultant, Dr. Isabelle Schulte-Tenckhoff — to whom he once again expresses his full gratitude for her invaluable collaboration.

27. Hence, the Special Rapporteur will highly welcome all critical opinions — not only from his colleagues but also, in particular, from those Indigenous peoples and Governments which did not respond to his questionnaire — that may arise during the debate that will be held on the contents of this Final Report at the forthcoming 1998 sessions of both the Working Group and the Sub-Commission.

28. These contributions will be duly taken into account for their potential utilization as additional elements of judgment to be incorporated into this Report before it becomes an official United Nations publication.

29. In this Final Report, the Special Rapporteur wishes to express gratitude to all the Governments that responded to the questionnaire sent them in 1991 and 1992; in particular those of Australia and Canada for the thoroughness with which they did so and the valuable documentation provided either at their own initiative or upon request. He also thanks the Governments of Canada, Chile, Spain, the United States, Fiji, Guatemala, and New Zealand for granting the facilities needed to carry out field research, or to participate in activities related to Indigenous questions in their respective countries.

30. The careful attention and efficiency with which the New Zealand authorities prepared and coordinated the Special Rapporteur’s programme of activities during his official working visit to that country in May 1997, and the fact that some of its highest authorities (e.g., the Ministers of Foreign Affairs and Justice) were gracious enough to find time to receive him personally and discuss issues affecting the Maaori people, merit his special recognition.

31. This Study could not have been concluded without the cooperation of many Indigenous peoples, organisations and authorities, who have offered the Special Rapporteur, not only their invaluable contributions (oral and written testimony, documentation, and much needed logistics of the most varied kind), but also constant encouragement in this work.

32. Even atthe risk of possible regrettable omissions, it is just to mention herethe support received from, among others, the following Indigenous organizations and institutional bodies: American Indian Law Alliance, Four Nations of Hobbema, Fund of the Four Directions, Grand Council of the Haudenosaunee Confederacy, Consejo de Todas las Tierras de la Nación Mapuche, Grand Council of the Crees (of Québec), Fundación Rigoberta Menchu, International Indian Treaty Council, Assembly of First Nations (Canada), Western Shoshone National Council (USA), Maaori Legal Services, Teton Sioux Treaty Council, Ka’laui Hawaii, International Organization of Indigenous Resource Development, OXFAM and DOCIP (Geneva).

33. His gratitude also goes to the authorities (elders, lonkos, Grand Chiefs and Chiefs, headmen, councilors, and advisers) of diverse Indigenous nations/peoples or their organizations; among them, Rigoberta Menchu Tum (Maya Nation), Oren Lyons (Onondaga Nation), Matthew Coon Come and Ted Moses (Crees [of Québec]), Tony Blackfeather (Teton Sioux/Lakota Nation), J. Wilton Littlechild (Four Nations of Hobbema/Canada), Domingo Cayuquo, Manuel Antilao, Jorge Pichinual, Juana Santander, and Aucan Huilcamán (Mapuche Nation), Ovide Mercredi (Assembly of First Nations/Canada), Cherrilene Steinhauer and Carl Queen (Saddle Lake First Nation/Canada), Wallace Fox (OnionLake First Nation/Canada), Felix Lockhart (Dene Nation/Canada), Sharon Venne (Lubicon Cree Nation-Joseph Bighead First Nation-Treaty Six Nations/Canada), Juan León (Maya Nation), Ingrid Washinawatok (Fund ot the Four Directions), Ken Deer (Mohawk Nation), Lazaro Pary (Aymará Nation), Bill Means, Antonio González, Jimbo, and Andrea Carmen (I.I.T.C.), Mililani Trask (Hawaii), Al Lameman (Beaver Lake Tribal Administration), Kent Lebsock (American Indian Law Alliance), R. Condori (C.I.S.A.), Pauline Tangiora, Minhinnick Nganeko, Aroha Pareake Mead, Moana Jackson, Dr. Margaret Mutu, Sir Tipene O’Regan, Sir Robert T. Mahuta, Moana Erickson, and Shane Solomon (Aotearoa/New Zealand), and Leif Dunfield (Saami Nation). All of them gave the Special Rapporteur most valuable information and insights on their respective peoples/nations and organizations.

34. The Special Rapporteur cannot leave unmentioned his gratitude to other Indigenous and non-indigenous individuals — all with recognized authority in diverse aspects of the Indigenous problematique and active, in general, in United Nations circles —, who have lent their knowledge, practical experience, and/or incisive, constructive criticism to the Special Rapporteur’s work.

35. Gudmundur Alfredsson (both in his past functions in the Centre for Human Rights, as well as in his capacity as a scholar specializing in this question), Augusto Willemsen Díaz, Chief Justice E. Dune (of the Waitangi Tribunal), Mario Ibarra, Jacqueline Duroure, Andrew Gray, Paul Coe, Renate Dominick, Robert Epstein, Florencia Roulet, Sir Paul Reeves, Anthony Simpson, Alberto Saldamando, and Professors Vine Deloria, Héctor Díaz Polanco, Michael Jackson, Gaston Lyon, Glenn Morris, C.M. Eya Nchama, Douglas Sanders, Mason Dune, Jim Anaya, José Bengoa (his colleague in the Sub-Commission) and the late Howard Berman, merit special thanks for their worthy academic contributions. None of them, of course, bear any responsibility whatsoever for the possible flaws in the various progress reports submitted on the Study, or in this Final Report itself.

36. Last but not least, the very heartfelt gratitude of the Special Rapporteur for the specialized assistance, patience and logistical cooperation provided by all those who regularly, or at one time or another, have served on the minuscule Unit/Task Force to which the Centre for Human Rights has assigned responsibility for Indigenous affairs. The diligence and the extreme professionalism with which they so effectively fulfilled their functions in terms of this Study (sometimes under truly excruciating conditions), have been simply exemplary. In this regard, their head, Mr. Julian Burger and his highly efficient colleague, Ms. Miriam zapata have, over long years, earned the total respect of the Special Rapporteur.

Weiter zu Chapter I: Some key points of departure
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