UN Experts Seminar: Indigenous Land Claims
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Ottawa, April 1, 1996
Dear Friends,
We are pleased to enclose for your information the
conclusions emanated from the U.N. Experts Seminar on Land
Rights and Claims, which took part in Whitehorse, Yukon, March
24-28, 1996.
As these conclusions are the result of consensual
agreement among all the participants present at the end of the
meeting, they are not open to revision, however, they represent
fully the wishes of indigenous peoples around the table.
We hope you will be able to be in a position to give this
document the widest possible circulation.
We thank you for your cooperation.
Rodrigo Contreras
Executive Director
WCIP Headquarters
100 Argyle Avenue
Ottawa, Ontario K2P 1B6
Canada
Tel: (613) 230-9030
Fax: (613) 230-9340
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Final Unedited Version
CONCLUSIONS AND RECOMMENDATIONS
The United Nations Expert Seminar on Practical Experiences
regarding Indigenous Land Rights and Claims meeting at
Whitehorse, Canada, from 24 to 28 March 1996, bearing in mind
and building upon important work already accomplished by the
United Nations system, in particular in the area of standard-
setting and within the context of other expert seminars such as
the Expert meeting on indigenous self-government held in Nuuk,
Greenland, and meetings taking into account the new
partnerships between indigenous peoples and the international
community based on mutual respect, reciprocity and harmonious,
accessible and equitable process offers the following
conclusions and recommendations for the consideration of
governments, indigenous peoples and their organizations, and
intergovernmental and non-governmental organizations.
I
1. Indigenous peoples have a distinctive spiritual and
material relationship with their lands, and with the air,
waters, coastal sea, ice, flora, fauna and other resources.
2. The importance of the issue of the link between self-
determination and the right to land is recognized.
3. The promotion and protection of rights over lands and
resources of indigenous peoples are vital for their development
and cultural survival.
4. Indigenous peoples continue to be affected by the
consequences of colonialism and are often deprived of a land
and resource base.
5. Governments should recognize the lands rights and titles of
indigenous peoples and implement effective and appropriate
procedures and mechanisms, including constitutional, legal or
treaty agreements.
6. Throughout the whole process, the procedures for the
recognition of these rights, should provide for the effective
representation and informed participation of indigenous peoples
as equals. Without this, whatever legislation or treaty on this
matter constitutes an imposition and not an enduring agreement.
7. States should make best efforts to guarantee access to land
of indigenous peoples deprived of their land or who lack
sufficient land and depend upon it for their survival, in order
to guarantee their cultural and material development.
Mechanisms such as land funds a claim settlement process where
they exist are encouraged.
8. The recognition of rights of indigenous peoples to specific
lands which they occupy cannot be separated from the
recognition of other rights, within larger areas necessary for
their material and cultural development.
9. Governments should review their laws and policies in order
to address the concept of the inherent rights to self-
government and self-management of indigenous peoples.
10. The existence of a fair constitutional and legal system,
including a fair judicial system, able to guarantee due process
of law is an important framework for the success and
implementation of land settlement processes. In some countries
experience has shown that the establishment of fair judicial
processes for the implementation of treaties, agreements and
other constructive arrangements with indigenous peoples has
been a useful means towards the respect of such agreements and
the education of the indigenous and non-indigenous communities.
11. Experience has shown that the equitable and fair
conclusion and implementation of treaties, agreements and other
constructive arrangements relating to land between states and
indigenous peoples can contribute to environmentally sound and
sustainable development for the benefit of all.
12. The International Decade of the World's Indigenous People
is an important vehicle for substantive participation of
indigenous peoples in the resolution of land settlements and
for increasing constructive partnerships with states and non-
indigenous communities.
13. I.L.O. Convention 169 is regarded by indigenous peoples as
articulating some minimum standards respecting indigenous land
rights. "The United Nations draft Declaration on the Rights of
Indigenous Peoples" as adopted by the Sub-Commission on
Prevention of Discrimination and Protection of Minorities could
be considered an opportunity for States to adopt an instrument
reflecting a broad consensus among indigenous peoples about
their land and resource rights.
14. Land rights and compensation issues arising from the
taking or use of indigenous lands for military or security
purposes, whether in war or in peacetime, can raise special
problems, which need to be addressed by Governments and the
international community.
15. Where land agreements are intended to protect the way of
life or cultural integrity of indigenous peoples, social issues
should be given equal emphasis to economic and resource issues.
16. Political will, in the form of a genuine commitment on the
part of Governments, to partnership, in decision making is
essential to the success of co-management regimes, and to the
avoidance of adversarial relations between the parties to such
regimes.
II.
17. Land rights settlements should be freely negotiated, in
good faith and not imposed unilaterally by legislation or
negotiated under duress or threat.
18. Governments should renounce discriminatory legal doctrines
and policies which deny human rights or limit indigenous land
and resource rights. In particular, they should consider
adopting corrective legislation and policies, within the
International Decade, regarding the following:
(a) The doctrine of terra nullius.
(b) The doctrine that indigenous communities do
not have the capacity to own land or to own
land in their collective capacity.
(c) The doctrine that indigenous land, title or
ownership may be taken or impaired by the
state or third parties without due process of
law and adequate and appropriate compensation.
(d) Doctrines or policies that indigenous lands
must be held in trust regardless of the
will of the indigenous peoples concerned.
(e) Doctrines and policies imposing an extinguishment
of indigenous land rights, title or ownership.
(f) Policies which exclude some indigenous peoples
from the land claims process established by the
state.
19. Principles or guidelines for land selection or demarcation
of indigenous lands should be jointly negotiated in a fair and
equitable process and without the imposition of arbitrary
criteria.
20. Governments, with indigenous peoples, should establish
fair procedures for reviewing situations and for taking
corrective action in situations in which indigenous land or
resources have been taken or extinguished through processes
which are claimed or are found to be fundamentally unfair or
discriminatory.
21. Governments have a responsibility to ensure indigenous
peoples have access to adequate resources to research and
negotiate their claims so that settlements are equitable, just
and enduring.
22. The structure, mandate, objectives, representation and
accountability of members and mode of operation, including
funding, of co-management structures should be determined
through a process of negotiation with the indigenous parties to
support the principle of equal participation.
23. It is important that practical effect be given to the
spirit and intent of treaties and land agreements. This
requires a willingness by the parties to act as partners, not
adversaries as well as a clear understanding of the spirit and
intent of treaties and land agreements by all parties.
24. Parties should negotiate on a basis of equality
acknowledging indigenous leadership, structures, languages,
social and legal systems in all aspects of the negotiations and
implementation. For example, every effort must be made for
agreements relating to land rights to be drafted in the
language of the indigenous peoples concerned and for the
indigenous language version to have equal status to the state
language versions.
25. Interim protection measures, such as moratoriums on land
transfers and on implementation of proposed development
projects, should be taken, as necessary to protect indigenous
lands or lands claimed by indigenous peoples from environmental
degradation and alienation to third parties. Such measures
would contribute to an atmosphere of good faith and
constructive spirit in the negotiation process.
26. Effective measures for implementation, dispute resolution,
amendment and enforcement of land settlements and agreements
should be provided.
27. There is serious need for training, education and the
required resources so that indigenous peoples may enter
negotiations processes fully informed and technically equipped
about the whole spectrum of implications of land rights
negotiations. Training and education should also figure
prominently in settlements implementation.
28. The equal participation of indigenous women should be
reflected in all aspects of negotiation and implementation of
land agreements.
29. There is a need to inform the non-indigenous public about
the significance of indigenous land rights for the very
survival of indigenous peoples and respect their human rights.
Land agreements are a way of building new constructive
relationships between indigenous and non-indigenous
communities.
30. Governments are urged to consider the establishment of
impartial mechanisms to oversee and facilitate fair and
equitable conclusions to land claims processes and the
implementation of land agreements, including international
mechanisms as necessary.
31. In its consideration of the establishment of a permanent
forum of indigenous peoples, the United Nations General
Assembly should consider whether the forum could play a
constructive role regarding problems pertaining to land rights.
32. The United Nations should prepare a study involving the
direct participation of indigenous experts on the issue of
extinguishment of land rights and its implications with a view
to recommending new approaches in this area with particular
regard to the recognition and implementation of rights.
33. The United Nations and its specialized agencies should
consider providing technical assistance to states and
indigenous peoples to contribute to the resolution of land
claims.
34. The World Bank should consider providing loans to
indigenous peoples directly, in particular in relation to
collectively owned land.
35. The United Nations system, before funding demarcation
projects, should have adequate consultative mechanisms at all
stages of the planning and implementation of projects.
36. The I.L.O Committee of Experts should clarify the
interpretation of Article 14, paragraph 1 of I.L.O. Convention
No. 169.
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38. It should be recognized that indigenous resource
management ensures the sustainability for future generations
and is rich in practical applications of wild life, fish and
habitat conservation.
39. Parties in land rights negotiation should make particular
efforts to ascertain and act upon the views of elders in these
matters.
40. International cooperation in support of the administrative
management of their lands and resources should be done in full
cooperation with indigenous peoples.
41. Indigenous peoples should participate in decision making
and policy regarding land, resources and development at
international, regional, national and local levels, including
UN processes such as the CSD and the Convention on Biological
Diversity.
42. The implementation of sustainable development should take
fully into account Indigenous Peoples' values, knowledge and
technologies, in order to ensure resources for future
generations.
43. The United Nations, its Specialized Agencies and other
Inter-governmental organizations should assure that indigenous
peoples cultural diversity, traditional values and ways of life
are protected in terms of Agenda 21 and the institutions
established for its follow up.
44. Where the division of indigenous lands and attempts to
divide these lands through individual titles as well as the
existence of land privitisation policies menace the material
and cultural survival of indigenous peoples this is a matter of
grave concern.
45. Governments should welcome, encourage and open up trade
among indigenous peoples and other parties from different
countries and facilitate such trade.
46. For the purpose of developing resources of indigenous
peoples and communities, States and Inter-governmental
organizations which provide international aid for such
purposes, should make best efforts to provide development
assistance through organizations of indigenous peoples.
+ + +
47. The United Nations, in the framework of the International
Decade, should consider holding further consultations,
workshops and seminars relating to indigenous land rights and
interests focusing on issues such as the negotiation process,
co-management regimes and other matters.
48. The Expert Seminar requests that the present report be
submitted to the fourteenth session of the Working Group on
Indigenous Populations and annexed to the Secretary-General's
report on the International Decade to be presented to the
fifty-first session of the General Assembly and that it be
published and given the widest possible dissemination.
49-55: Additional recommendations for the UN system based on
the text submitted by the Expert Roger Plant to be included.
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Final unedited version prepared by Preston Hardison from a document
released by the World Council of Indigenous Peoples. The electronic
version has been checked for errors, but this is not an official copy
and any errors remin the responsibility of the typist. For
more information, please contact the WCIP.
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