Indigenous and Tribal Peoples and the ILO

1. Indigenous and Tribal Peoplesand the ILO Standards – Assistance Research

2. ILO Fields of Action • International standards • Supervision of application • Promotional activities • Assistance to governments • Assistance to indigenous communities • Participation in international deliberations

3. ILO Assistance • Project to Promote C. 169 (Asia, Africa, Americas) • Povertyalleviation • Capacity building • Discrimination, forced labour underFundamentalRightsDeclaration • Child labour under IPEC

4. Origins of ILO interest Began working on ‘native peoples’ in 1920s and 1930s: Native Labour Code First international standards regulating kinds and degree of exploitation, including forced labour, conditions of work – foreshadowed decolonization Latin American members asked ILO to examine indigenous populations in their countries end-1930s.

5. Andean Indian Programme Multi-organization programme led by ILO 1952 – 1972 6 Andean nations – big impact on indigenous, positive and negative Developed approach of looking at life-style rather than only ancestry

6. Modern approach to indigenous rightssince 1971 « Martinez Cobo » report launched in UN Sub-Commission 1971 – completed 1982 UN Working Group established 1981 World Conference on HumanRights 1993 Meeting of Experts in ILO 1986 - ILO revised C 107 in 1989 (C169) ILO and UN establishedwhatbecame Inter-Agency Support Group in 1990

7. World Bank from mid-1980s, now IFC as well Permanent Forum 2001 Special Rapporteur 2001 UN system development guidelines UN Declaration (finally!) in 2007 EMRIP 2007 World Conference 2014

8. ILO Standards • Indigenous and Tribal Populations Convention, 1957 (No. 107) – revised by --- • Indigenous and Tribal Peoples Convention, 1989 (No. 169) • Other standards protectingindigenous peoples as workers (seebelow)

9. Convention No. 107 (1957) • First int’l Convention on subject • Adopted by ILO with UN system • Ratified by 27 countries (stillbinding on 14: Africa + India/Bangladesh/Pakistan) • Good protections (lands, humanrights), but • Integrationistapproach • Revised by C. 169 (= replacement ratification)

10. Convention No. 107 called into question as paradigm of development changed And ITPs formed their own NGOs UN system/NGO awareness plus internal doubts made ILO aware it was facing abandon or replacement of C107 Expert meeting 1986 decided to recommend revision.

11. Convention No. 169 (1989) • Onlyint’l Convention specifically on indigenous peoples open to ratification • Adoptedwith UN system, indigenous participation • ILO expectedthis to be short-term solution • Ratified by 22 countries (mostrecent: Central AfricanRepublic, Nicaragua) • Basis of all ILO action

12. C. 169 (cont’d) • Article 1 • 1. This Convention applies to: • (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

13. (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

14. 2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply. 3. The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.

15. Consultation Article 6 1. In applying the provisions of this Convention, governments shall: (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;

16. (b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them; (c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.

17. 2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.

18. Land and resource rights Article 14 1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.

19. 2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. 3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.

20. Article 15 1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.

21. 2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.

22. C. 169 (cont’d) • Special labour protection (Art. 20) • Indigenous control over education, health • Contacts acrossborders • Coordinatedgovt administration

23. Other standards • A number of ILO standards protect indigenous peoples as workers: e.g., • Non-discrimination – C. 111 • Forced labour – C. 29 • Others – includingwage protection, safety and health, migrant workers, labour inspection … • And UN standards increasinglyfound applicable / Covenants et al. • American regional courts and Inter-American Court increasinglyrelying on C169 and UN Declaration as bindinglaw, evenwhenthey are not really.

24. ILO supervision:regular and revealing • Committee of Experts on the Application of Conventions and Recommendations • Reports due by Sept. 2013 from all ratifying countries on Cs 107 and 169 • ConferenceCommittee calls somegovernments to account in public – e.g., Peru 2010

25. Current questions Argentina: Follow-up representation, participation and consultation – land rights Brazil: follow representation, consultation – land, logging, resources, vulnerable communities Colombia: TU comments, coordinated action, climate of violence, consultation, resources.

26. Guatemala: representation, consultation, encroachment, mining Mexico: representations, traditional occupations, primacy of indigenous title, forced sterilization, consultation Paraguay: lack of info, labour abuses (Mennonites inter alia), land, resources Peru: Conference discussion, progress on consultation

27. Others: Chile, Nepal, Costa Rica, Nepal, Ecuador, Dominica, Venezuela, Honduras

28. Complaints procedures • Complaints systems applicable, a numberfiled • Art. 24 representations (ILO complaints procedure) againstDenmark, Bolivia, Colombia, Ecuador, Mexico, Peru, et al. • Findings in most cases: lack of consultation, land rights not respected, abuses rampant

29. Findings from supervision • Most governments are reporting • Governmentsoftenasking for help • Indigenous peoples making « alternative reports », or …. • Trade unions makingcomments on behalf of indigenous peoples • Measuresbeingtaken or attempted in a number of countries

30. But - consultations and participation lacking Evenseriousgovernments are having trouble gettingprocedurestogether Manyseriousabuses continue, labour et al. Loss of lands, resoruces Growingtendency on part of indigenous and tribal peoples to asserttheirinterests, to organize, to protest.