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UNITED
Distr.
E/CN.4/Sub.2/1995/27
31 July 1995
ENGLISH
Original: SPANISH
GE.95-13232 (E)
Sub-Commission on Prevention ofForty-seventh session
Discrimination and Protection of Minorities
Second progress report submitted by Mr. Miquesl Alfonso
Martinez,
Special Rapporteur
CONTENTS
Paragraphs
----------
Introduction . . . . . . . . . . . . . . . . . . . 1 - 10
I. RESEARCH WORK AND OTHER ACTIVITIES
CARRIED OUT . . . . . . . . . . . . . . . . . 11 - 47
II. SOME REFLECTIONS ON THE MINORITY/INDIGENOUS
PEOPLE DICHOTOMY . . . . . . . . . . . . . . 48 - 129
III. FROM THE STATUS OF SOVEREIGN PEOPLES TO
THAT OF VASSALS, WARDS OR ASSIMILATED
OR MARGINALIZED PEOPLES . . . . . . . . . . . 130 - 331
IV. CONCLUSIONS AND RECOMMENDATIONS . . . . . . . 332 - 342
INTRODUCTION
1. In its decisions 1992/110 and 1993/105 of 27 August 1992
and 5 March 1993, the Sub-Commission on Prevention of
Discrimination and Protection of Minorities and the
Commission on Human Rights, respectively, requested the
Special Rapporteur to submit to the Working Group on
Indigenous Populations at its twelfth session, and to the
Sub-Commission at its forty-sixth session (1994), his second
progress report on the present study.
2. For reasons explained by him before both bodies - which
to some extent have remained valid during the months since
July/August 1994 - the Special Rapporteur was unable to
comply with that request. 1/
3. Notwithstanding this setback, the Working Group, on the
basis of the information provided orally by the Special
Rapporteur concerning the work done in that field since the
submission of his first report, took the opportunity on that
occasion to hold a useful debate during which more than a
dozen observers made valuable suggestions for his future
work. 2/
4. On the basis of the Working Group's recommendation in
that regard 3/, the Sub-Commission adopted decision 1994/116
of 26 August 1994 in which, after welcoming the discussions
held at the twelfth session of the Working Group, it
recommended that the Special Rapporteur should make all
possible efforts to submit his second progress report in
1995 to the Working Group at its thirteenth session and to
the Sub-Commission at its forty-seventh session, as well as
his final report to both bodies in 1996.
5. In that decision the Sub-Commission also decided, inter
alia, to request the Secretary-General to give the Special
Rapporteur "all the assistance necessary to allow him to
continue his work, IN PARTICULAR BY PROVIDING FOR THE
SPECIALIZED RESEARCH ASSISTANCE REQUIRED ..."(underlining by
this rapporteur).
6. The Commission on Human Rights, in its decision 1995/109
of 3 March 1995, endorsed the recommendations submitted to
it by the Sub-Commission.
7. Pursuant to these decisions of the Sub-Commission and
Commission, and to those adopted on the subject by the
Economic and Social Council in 1993 and 1995, the present
report is submitted for consideration to both the Working
Group at its thirteenth session and the Sub-Commission at
its forty-seventh session.
8. In preparing this report, the Special Rapporteur has, as
on previous occasions, taken into account to the fullest
possible extent the general remarks and specific suggestions
made to him both by his colleagues in the Working Group and
the Sub-Commission and by observer delegations - of
Governments and indigenous peoples alike - in the most
recent discussions regarding this study.
9. The Special Rapporteur's objectives in this report are
predicated both on a number of questions which he had
previously announced would be addressed on this occasion and
on the need for him now to develop further his thoughts and
views regarding a number of topics that have been
highlighted through the considerable research work that has
had to be carried out on the extensive documentation
received since his first report.
10. These objectives are as follows:
(a) To inform the Working Group and the Sub-Commission
about the research work and other activities carried out by
the Special Rapporteur in the period extending from late
1992 to early 1995;
(b) To establish some basic benchmarks in respect of
certain legal and conceptual matters - in particular the
minorities/indigenous peoples dichotomy - that are very
directly related to his practical work, especially in the
forthcoming final stage of this study;
(c) To analyse the various ways in which, with the
passing of time, there has been a gradual erosion of the
sovereign status of indigenous nations, so clearly
perceptible at the time of their first contacts with other,
non-indigenous peoples, from the time of the latter's
arrival on lands traditionally occupied by the former.
As a result of the progress made since the submission of the
first report in investigating documentary material relating
to both the historical and present-day situations singled
out for analysis in 1992 in respect of Asia/Oceania and
Africa, the Special Rapporteur has decided to pursue
objective (c) with reference to these two regions of the
world. This will fill a gap in the first report which had
been brought to the attention of the Special Rapporteur.
This decision by the Special Rapporteur has also been
dictated by reasons of time and space, since there is a much
greater volume of material relating to other regions than
was used for this report. It may be added lastly that the
relevance of situations in Asia/Oceania and Africa to the
issues addressed in Part II was also a factor taken into
account by the Special Rapporteur in giving precedence this
year to analysis of the Afro-Asian problem area.
I. RESEARCH WORK AND OTHER ACTIVITIES CARRIED OUT
11. During the period between the last quarter of 1992 and
the first quarter of 1995, significant progress was made
with the huge amount of scientific research required by a
study of this nature and scope. The Special Rapporteur again
feels bound to acknowledge the key contribution made by his
consultant, Mrs. Isabelle Schulte-Tenckhoff, to this task,
in particular through each of the research reports produced
by her in 1993 and 1995.
12. In addition to these reports, mention should also be
made of another, drafted in 1994, and of a number of
scientific papers published by her in various specialized
scientific journals on subjects directly linked to the
present study. The Special Rapporteur has been privileged to
have access to these additional scientific papers, which
have in a sense been inspired to some extent by her interest
in the study and have directly or indirectly hinged on work
relating to this second progress report.
13. All this work has been performed notwithstanding the
fact that what the Centre for Human Rights was able to offer
her in the way of having her duties as a consultant formally
recognized through an appropriate contract fell far short of
what the Special Rapporteur considers she was entitled to
expect in this regard. This is particularly so if account is
taken of the repeated requests addressed by the Sub-
Commission, the Commission and the Economic and Social
Council to the Secretary-General to give him "all the
assistance necessary to allow him to continue his work".
14. As regards the analytical research work proper,
noteworthy results have been achieved in respect of various
areas of importance for the study. One of these has to do
with understanding the very diverse roles that may have been
played in their time by the so-called "Royal Companies" for
maritime trade in the initial and subsequent contacts
between the European dynasties and trading groups in that
part of the world and the peoples of Asia and Africa. 4/
15. According to a very reliable source, 5/ some of them,
like the East India Companies established by Holland and
England, were "permanent legal entities ... endowed with
delegated sovereign powers".
16. The same author notes that, nevertheless, in a number of
cases "the position of the European trader was ... a legally
complicated one, for he was strictly speaking under the
territorial jurisdiction of a foreign Ruler, but at the same
time under the personal and disciplinary jurisdiction of his
Company, which often claimed semi-territorial and sometimes
a vassal-like status within the precincts of a settlement
flying its own national flag". 6/
17. In other cases, the situation resulting from
negotiations with the local rulers did not involve the
surrender of enclaves or territorial rights, with possible
direct repercussions on the sovereignty of the States
negotiating with the trading companies (whether or not they
had been delegated sovereign powers by the monarchs
concerned), since the only purpose of "treaties" or
"arrangements" was the securing of certain trading
privileges for the company in question. 7/
18. However, some of the treaties of this particular nature
laid down certain conditions as to exclusive trading rights.
These may be understood in the modern sense as clear
restrictions on the sovereign right of the other party.
Obviously, the key factor here would be the possible
exercise of coercion in order to obtain the consent of that
party. 8/
19. Yet even when account is taken of the fact that many of
the instruments to which the aforementioned companies were
parties related to the "innocent" sphere of trade and did
not always jeopardize any of the sovereign powers of the
peoples concerned, it should be borne in mind that the
direct effect of the arrival of European traders and
colonizers in Asia and Africa was the virtual breakdown of
the indigenous trading system in those regions. There is
thus no need to emphasize the chain of consequences this had
for political, economic and social institutions in those
societies.
20. This is amply documented, particularly as regards the
"Royal Companies", which engaged in their activities in
southern and south-east Asia. It should not be forgotten
that, as was already noted in the first progress report
(para. 217), this trade began to be disrupted as early as
1511, which was the year when the Portuguese conquered the
port of Malacca (in present-day Malaysia) which was the
centre of the trading system in the region. 9/
21. In point of fact - and this may serve as a preliminary
conclusion regarding the research done to date - this is
tantamount to saying that where large parts of Asia and
Africa are concerned, particularly in respect of the
earliest European contacts with nations then existing in
both continents, the historical legacy in the matter of
treaties, agreements and arrangements is to a considerable
extent directly linked to the history of these "Royal
Companies".
22. It should be stressed that they also, for a wide range
of reasons determined by their own interest, recognized
(even when they violated it by force) the sovereignty and
the identity of the peoples living in the areas of interest
to them, particularly areas which were important trading
centres.
23. By and large, the instruments to which these companies
were parties clearly establish the existence of a huge
variety of peoples and territories which in a later day and
age - and after going through a stage of European
colonization that totally denied the sovereign powers of
those that were affected by it - now form part of a large
number of multi-ethnic/multinational contemporary States in
those continents.
24. Needless to say, in more than a few of them problems
persist that have been coped with by the most varied means.
However, colonialism - which cast its long shadow over that
period, in particular when the seeds of independence were
being sown in those now independent multi-
ethnic/multinational countries and borders were being
established with other States subject to the colonialism of
other European Powers - continues still today to exercise
the same harmful effect upon those societies.
25. Another point on which the Special Rapporteur has been
able to make significant progress, and one which is directly
linked to certain legal concepts of fundamental importance
for this study, concerns the further development of the
premises for a non-Eurocentric concept of international law
(or of the "Law of Nations" as it was known when it first
emerged in the modern age). The Special Rapporteur must
confess that he was himself already inclined to work along
these very lines.
26. The fact that during this period the Special Rapporteur
has been able to benefit from certain key ideas contained in
the works of such authors as Charles Alexandrowicz, 10/ Jorg
Fisch, 11/ Dieter Dorr, 12/ and M.F. Lindley 13/ (all
brought to his attention by his consultant in July 1994) has
proved to be of particular importance to him in arriving at
a more precise picture and a fuller understanding of the
extraordinary changes that occurred in the basic concepts of
public international law with the spread of imperial power
(European or American, but never indigenous), in respect of
significant aspects of that discipline, and that are of
direct relevance to indigenous peoples.
27. These aspects include the historical analysis of the
various arguments both for and against - concerning the
former or continuing sovereignty of the indigenous nations;
the value to be accorded to the texts of legal instruments
known only through the version given of them by one of the
parties involved when the two speak different languages; the
effects of the so-called "unequal treaties" in the light of
differences in the legal and political customs and
traditions of the parties concerned; and the value (or
otherwise) of the European conception of "reciprocity" in
the legal arrangements made with the indigenous peoples.
These are some of the areas in which new and interesting
light has been shed for the Special Rapporteur by the
aforementioned works.
28. Furthermore, during this period significant progress has
also been made in gathering primary materials in this field.
Special thanks are due to the Government of Canada (for
keeping the Special Rapporteur informed of recent
developments in that country), to such institutions as the
American Indian Law Alliance (for providing him with
extensive materials on United States legislation and case-
law), and to such scholars as: O.M. Eya Nchama (for his
contributions on the history of Africa), Florencia Roulet
and my colleague Mario Ibarra (for their contribution
regarding the historical background to the situation of
indigenous peoples in Argentina and Chile) and Renate
Domnick (for his comments on the case of the Western
Shoshone nation).
29. It cannot be said, however, that unqualified success has
been achieved on this particular score. For example, a great
deal is still needed to complete the very necessary updating
of the national laws applicable in this field.
30. A case in point is perhaps that of Latin America since,
although the Special Rapporteur has been able, by various
means, to consult draft legislation (or present-day laws and
constitutional provisions) in such countries as Brazil,
Chile, Honduras, Guatemala, Mexico, Paraguay and Venezuela,
it is not clear to him whether these legislative bills have
been adopted (and if so, whether in the same form as that in
which they were available to him) or whether the further
laws that would give actual effect to those constitutional
provisions have already been enacted and are in force.
31. The Special Rapporteur has suffered from an all but
total lack of documentation regarding the indigenous peoples
in what has now become the Russian Federation, e.g. the
Aleut, Chukchi, Evenki, Inuit, Nenets, Khants and Koryak
nations, despite having given special attention to the
contributions of some of those peoples to the Working
Group's most recent sessions.
32. The widespread lack of response by the governments
concerned to the questionnaire distributed (and
redistributed) to them some years ago, may be said to be the
chief obstacle that had to be faced in this regard.
33. However, one positive development is that, although it
did not formally reply to the aforementioned questionnaire,
the Government of the United States of America, in a letter
addressed to the Special Rapporteur on 25 July 1994 by the
Office of Legal Affairs of its Permanent Mission in Geneva,
offered for the first time to collaborate with him in his
work for this study.
34. To the letter were annexed a list of judgements on
indigenous affairs handed down by various courts in that
country and a photocopy of the text of an important chapter
of one of the most highly reputed works in this field
published in the United States. Both have been useful for
this report.
35. A further positive development to be stressed is that,
thanks to the action taken by a number of indigenous
organizations, in particular the International Indian Treaty
Council (IITC) of San Francisco, California, United States
of America, the Special Rapporteur has begun to receive (or
will be receiving in the near future) not only copious
documentation regarding the difficult situations - some of
them so extreme as to verge on physical extinction -
affecting a large group of indigenous nations currently
living in the territory of what now constitutes that
country, but also replies to the aforementioned
questionnaire.
36. The explanatory leaflet prepared by that indigenous non-
governmental organization concerning the questionnaire (in
collaboration with the Special Rapporteur) has been an
essential factor in this major development. He expresses his
thanks to the IITC for this valuable contribution to his
work and for having taken very seriously the appeal made by
him in this connection in his first progress report. 14/
37. With regard to the important matter of fieldwork, the
Special Rapporteur must again express his appreciation of
the effort also made by the IITC to help arrange an
extensive tour for him through eight States in the United
States of America (Arizona, California, Minnesota, New York,
New Mexico, Oklahoma, South Dakota and Washington) in the
autumn of 1994.
38. The information gathered during this tour, in particular
at the public hearings held in each of those States, which
were attended by many representatives of indigenous nations
who spoke about their problems, is of outstanding importance
for present and future work relating to this study.
39. The Special Rapporteur is also grateful for the
invitation extended to him by the Grand Council of the Crees
(of Quebec), which enabled him to visit various communities
belonging to that nation in the autumn of 1993. On that
occasion he was able to assess the enormous degree of
deterioration in the environmental and living conditions of
the various communities visited (and of their ability to
develop their traditional economic activities) caused by the
construction of a gigantic hydroelectric power plant, as a
result of the application of certain provisions of the James
Bay and Northern Quebec Agreement.
40. Regarding also the situation of the indigenous nations
now living in Canadian territory, the Special Rapporteur had
the honour to be invited by another important indigenous
non-governmental organization based in Ottawa (the Assembly
of First Nations) to attend a seminar on the rights deriving
from the indigenous treaties existing in that country, held
in the winter of 1993.
41. Thanks to the President of the Assembly, Mr. Ovide
Mercredi, he also had an opportunity on that occasion to
attend a working meeting of the Royal Commission on
Aboriginal People, established by the Canadian Federal
Government, and to engage in wide-ranging talks on matters
directly related to this study with Mr. George Erasmus, co-
chairman of that Commission. Profiting from his stay in the
Canadian capital, he was also able, on the proposal of the
Canadian Ministry of Foreign Affairs, to have talks with
senior officials of that Ministry and of the Ministries of
Justice and Constitutional Affairs. At that meeting,
questions relating to the study were likewise discussed.
42. Lastly, the Special Rapporteur wishes to thank the
authorities of the Raoul Wallenberg Institute of the
University of Lund, Sweden, for the invitation that allowed
him to attend a seminar on indigenous affairs sponsored by
that institution in the summer of 1994. During the
discussions, particular aspects and possible future
repercussions of the present study were usefully examined.
43. Not all the fieldwork proved as profitable as could be
expected. The Special Rapporteur's second visit to the
ARCHIVO DE INDIAS in Seville, Spain, in late autumn 1992 was
disappointing in terms of the search for documents. Contrary
to the information available, the archives for that period
had not yet been fully computerized, making the search for
specific legal documents exceedingly difficult and
frustrating. Nevertheless, he took the opportunity to copy
valuable information from the excellent bibliographic
holdings existing in that institution.
44. It should also be mentioned that, for reasons of both
work and health, the Special Rapporteur was unable to
complete a series of missions in the field which would
without any doubt have contributed in no small measure to
this second report.
45. By way of information, mention may be made firstly of
the invitation from Mrs. Rigoberta Menchu Tum, Nobel Peace
Prize winner, to attend the Second Assembly of the
Indigenous Initiative for Peace (UNESCO, Paris, February
1995) and that extended by the IITC to visit indigenous
communities in the States of Alaska and Hawaii.
46. The Special Rapporteur also wishes to express his regret
to the authorities of the Canadian Bar Association and to
the Treaty Four nations in that country at not being able to
accept their kind invitation to visit them (also in February
of the current year). For the same reasons, he had to
postpone the working visit scheduled for this year to the
Vatican archives (suggested by various indigenous
representatives at the twelfth session of the Working
Group). 15/
47. With regard to possible future activities of this kind,
the Special Rapporteur is confident that both the local
government authorities of Greenland and the Consejo de Todas
las Tierras of Chile will be able to work out the details of
the invitations extended by them respectively some time ago
to visit their lands. He also ventures to express the hope
that this will be arranged in sufficient time for him to be
able to incorporate his findings into his final report.
II. SOME REFLECTIONS ON THE MINORITY/INDIGENOUS
PEOPLE DICHOTOMY
48. In his preliminary report on this study (1991), the
Special Rapporteur felt obliged to say how important, from
the outset of his work, he had found the conceptual
distinction between these two groups of human beings and the
practical consequences for his future work that stemmed from
that distinction. He put it as follows:
"[The Special Rapporteur considered] ... that both in
the data-gathering phase of his work and in his
analysis of the results obtained, he should strictly
adhere to the practice followed in work in this sphere
of DISTINGUISHING BETWEEN 'MINORITIES' AND 'INDIGENOUS
POPULATIONS' (PEOPLES) (author's underlining). He is
very much aware of the degree of discretion that he
will have to exert because of this decision and the
practical difficulties inherent in it. Nevertheless, he
is confident of being capable of differentiating the
latter with total objectivity and sound reasoning." 16/
(underlining by this rapporteur).
49. He pursued this idea, stressing that it would continue
to be a guideline for his work on all matters related to the
study until the completion of his mandate. 17/
50. Besides this, and bearing very much in mind the course
of discussions within the Commission on Human Rights, the
Commission's decisions on his mandate and his exchanges of
views with many representatives of Governments and
indigenous peoples attending discussions in the Working
Group, the Special Rapporteur has always been very aware of
the universal scope of his tasks.
51. Both in the initial outline of the study 18/ requested
of him by the Commission 19/ and the Council 20/ and in the
preliminary report mentioned above, 21/ the Special
Rapporteur reaffirmed the worldwide nature of his mandate.
He re-emphasized it in 1992 in his first progress report.
22/
52. Describing the geographical scope of this study, he
repeatedly emphasized that he felt obliged, in his
investigations, to explore possible situations in all parts
of the world that might relate to the tasks entrusted to him
by the Sub-Commission, the Commission and, ultimately, the
Economic and Social Council.
53. It was on this basis that, in deciding - among the
enormous number of cases and situations that might
potentially fall within his terms of reference, none of them
yet documented - which could serve as points of departure to
give a focus to his future investigations, the Special
Rapporteur covered in his first progress report a large
number of situations (41) 23/ that he regarded as being
prima facie representative of the five different categories
24/ which he considered (and continues to consider) fell
within his mandate. Those selected on that occasion related
to EVERY geographical region on the planet.
54. Being, however, fully aware of the limitations that his
efforts to assemble documentation still displayed in early
1992, he stressed at that time the purely indicative nature
of his selection of situations. The selection, as he put it
in his progress report, "could not be fully balanced in
terms of the amount of data available, analytical results or
regional representativity". He concluded his discussion of
the matter by pointing out that "obviously the cases
reviewed in this progress report WILL NOT BE THE ONLY ONES
WHICH WILL CONTRIBUTE TO THE FINAL CONCLUSIONS OF THE
STUDY". 25/ (underlining by this rapporteur).
55. Given this background, various factors that have
recently emerged have added to the importance that the
Special Rapporteur attaches to clarification of the
aforesaid minority indigenous people (nation) dichotomy.
56. On the one hand, he has been able greatly to extend his
knowledge not only of the circumstances that shaped
relations and the formulation of legal agreements (original
and subsequent) between indigenous and non-indigenous
peoples in widely different parts of the world in the past,
but also of the agreements arrived at by indigenous
populations themselves among one another in certain parts of
the world (notably, though not exclusively, in Asia and
Africa).
57. Of particular relevance to these new insights was the
possibility of enlarging his vision of the struggle between
the European colonial Powers in Asia, Africa and the
Americas, from the sixteenth century onwards, to impose
their own political and economic hegemonies in what today is
called the Third World; and also regarding the active
involvement of those same colonial Powers in the processes
which have led to the existence today, as sovereign
entities, of a large number of multi-ethnic/multinational
States in Africa and Asia.
58. The repercussions of that involvement on many of the
problems now facing certain ethnic groups in those States
are undeniable.
59. Moreover, the laudable flexibility of the rules laid
down at the outset by the Working Group to govern
participation in its discussions, the increasing prominence
its activities enjoy in the eyes of international opinion
and the financing options available through the Voluntary
Fund for Indigenous Populations have enabled (and
stimulated) a wide variety of human communities from all
corners of the world to come to Geneva and assert their
status as indigenous peoples.
60. Lastly, other activities by United Nations bodies (e.g.
the Commission on Human Rights) or special rapporteurs on
specific subjects or countries (such as those on Sudan or on
the concept of minorities) have - in the Special
Rapporteur's opinion - served to create confusion regarding
certain key questions relating to this minority/indigenous
people (nation) dichotomy.
61. These concerns have prompted the Special Rapporteur to
share with the Working Group and the Sub-Commission, through
this report, some of his thoughts on a situation which, in
his judgment, if not carefully thought through, might yield
counterproductive results on a subject of major concern to
the Group, the Sub-Commission, the Commission and the
Council, especially since the establishment of the Working
Group in 1982, namely the elimination of discrimination
against indigenous peoples and the restoration or
implementation of their rights, including their human
rights.
62. These thoughts stem from an important consideration: the
elements available for the attempt to define minorities, on
the one hand, and indigenous peoples (nations) on the other.
63. At the outset it must be stressed that the international
legal community - basically composed of the States that are
members of the United Nations system - has never yet defined
what constitutes either "peoples" (which, the Charter itself
says, have the right to self-determination) or "minorities"
or "indigenous peoples".
64. Fortunately, however, the pragmatic sense that guides
the efforts of that community has not prevented it from
adopting international agreements of notable breadth
employing such terms, for example, as the 1960 Declaration
on the Granting of Independence to Colonial Countries and
Peoples and the 1992 Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic
Minorities.
65. It therefore logically follows that the want of a formal
definition of an "indigenous people" cannot impede the
future adoption of the current draft United Nations
declaration on the rights of indigenous peoples, which the
Sub-Commission has already commended to the governmental
bodies of the United Nations system.
66. Still, there are points of reference, both for
minorities and for indigenous peoples or nations.
67. In the case of minorities, the points of reference are
the attempts to formulate a definition made by the Italian
professor, Francesco Capotorti, and later by the Canadian
judge, Jules Deschenes, in both cases at the urging of the
Sub-Commission.
68. According to Capotorti, a minority is "a group which is
numerically inferior to the rest of the population in a
State, and in a non-dominant position, whose members possess
ethnic, religious or linguistic characteristics which differ
from those of the rest of the population and who, if only
implicitly, maintain a sense of solidarity directed towards
preserving their culture, traditions, religion or language".
26/
69. Deschenes, for his part, describes it as follows: "A
group of citizens of a State, constituting a numerical
minority and in a non-dominant position in that State,
endowed with ethnic, religious or linguistic characteristics
which differ from those of the majority of the population,
having a sense of solidarity with one another, motivated, if
only implicitly, by a collective will to survive and whose
aim is to achieve equality with the majority in fact and in
law." 27/
70. The similarities and differences between the two
approaches are obvious. The authors agree on the notion of
these groups of people as numerical minorities; on their
non-dominant position in the social fabric; on their shared
ethnic, religious or linguistic traits; on the sense of
community that moves them; and on the collective will to
survive in accordance with their traditions and style of
life.
71. But Capotorti's basic emphasis seems to be on numerical
inferiority, while Deschenes stresses both the status of
these groups - perhaps in the light of the greater diversity
in Canada - as "citizens of a State" and, curiously, the
quest for "equality ... in fact and in law" vis-a-vis the
majority in their respective societies.
72. It is worth adding that Capotorti's definition could be
applied to indigenous peoples as well as minorities, if
general public pronouncements in many different parts of the
world are taken into account. In contrast, Deschenes'
criterion could validly be interpreted as distinguishing
between the two categories if one considers how the latter
part of his definition is worded.
73. According to Deschenes, legal equality with the
"majority" would be possible only on the basis of the legal
institutions of the majority/dominant sector in the
multinational society in question, not as a derivative of
the legal culture of the "minorities".
74. It need hardly be said that such a renunciation of a
crucial part of their culture (including their own legal and
political institutions) is, understandably, anathema for a
wide range - very probably the majority - of indigenous
peoples, as was well known before Deschenes' work appeared.
75. In a way, the 1992 Declaration 28/ was the logical
extension of article 27 of the 1966 International Covenant
on Civil and Political Rights, which states:
"In those States in which ethnic, religious or
linguistic minorities exist, persons belonging to such
minorities shall not be denied the right, in community
with the other members of their group, to enjoy their
own culture, to profess and practise their own
religion, or to use their own language."
76. Since the entry into force of the Covenant, in 1976,
this stipulation, in conjunction with the Optional Protocol
to the Covenant, has continued to be the focal point of
possible international protection for minorities on account
of the nature of the formal legal obligations undertaken by
States becoming parties to these agreements.
77. According to the authors of a recent article on the
subject, the International Covenant, the Protocol and the
Declaration, taken together, make up "a programme, when
compared with the first multilateral regime for the
protection of minorities established under the League of
Nations"; their shortcomings are, nevertheless, critically
commented upon. 29/
78. Although the Special Rapporteur can understand the
reasons for it, the main shortcoming to be found in the
three international agreements - as regards the possibility
of securing effective international protection for minority
rights - is, in his view, that the rights they acknowledge
and the protection they accord are, in the strict sense,
applicable only to the members of such groups as
individuals, not to the group of people as such and
considered in its entirety. This despite the fact that
articles 1 and 4 (the first sentence of subparagraph 4) of
the 1992 Declaration contain certain references to
minorities as entities considered as a whole.
79. In other words, the prevalent notion in those texts is
one of individual rights as the focus for possible
international concern over human rights, as has been
fashionable in the United Nations since the groundwork was
clearly laid down in the Universal Declaration of Human
Rights in 1948. 30/
80. This approach - whose limitations need not be dwelt on -
remained virtually the only one, conceptually and
practically, in the field until relatively recently, when
many "Third World" States and countries from the now-defunct
"socialist camp" argued successfully for recognition of
"collective rights" in practical United Nations activities.
81. It is worth mentioning here how much importance
indigenous peoples justly attach to recognition of their
collective rights - rights enjoyed by social groups as such,
as collectives considered in their entirety, as a whole, and
as specific entities - the latter in the sense of entirely
distinct societies in cases where there exists a multi-
ethnic/multiracial social context.
82. It should also be mentioned - as Schulte-Tenckhoff and
Ansbach have done 31/ - that in the case of minorities, the
absence of a definition applies not only to the term in
general but also to the adjectives used to qualify it (i.e.
national, ethnic, religious, cultural and linguistic), as a
consequence, they say, of the "wide geographical and
historical diversity" of these groups.
83. Schulte-Tenckhoff and Ansbach also emphasize that,
despite the proliferation of adjectives, United Nations
activities have always controversially, for some - excluded
migrant (geographical) workers from minorities, 32/ as they
have (at least up to now) indigenous peoples (nations) (or
"indigenous populations", to use the term generally employed
by the various United Nations bodies other than the Working
Group).
84. In conclusion - on anything but weak grounds - they
accept "the impossibility of arriving at a definition of
minorities", at least for the time being. They reason that,
though the search for such a definition may be an eminently
political undertaking in which the widely divergent
interests of the States that must come to grips with the
task in the United Nations collide, it is an undertaking
fraught with practically insuperable difficulties; accepting
the fact that, needing to essay the (im)possible uniform
treatment of innumerable specific situations, "the
protection of minorities, United Nations-style, tends to
favour a practical approach which tends to consider only
those aspects of the problem to which it appears possible to
offer a solution". 33/
85. As regards the definition of an indigenous people or
nation, the situation is somewhat different. First, there is
a "working definition" put forward in his compendious work
34/ by the Ecuadorian expert, Jose R. Martinez Cobo, who was
commissioned, as a Special Rapporteur, to produce a study on
the problem of discrimination against indigenous
populations.
86. It would appear important, in the context of this
chapter, to recall how Martinez Cobo expressed his ideas on
the subject. He did it as follows:
"Indigenous COMMUNITIES, PEOPLES AND NATIONS are those
which, having a historical continuity with PRE-INVASION
AND PRE-COLONIAL societies that developed on their
territories, consider themselves distinct from other
sectors of the societies now prevailing in those
territories, or parts of them. They form at present
non-dominant sectors of society and are determined to
preserve, develop and transmit to future generations
their ancestral territories, and their ethnic identity,
as the basis of their continued existence as peoples,
in accordance with their own cultural patterns, social
institutions and legal systems." (underlining by this
rapporteur).
87. This "working definition" forms part (para. 379) of
chapter XXII ("Proposals and recommendations") in the third
(and last) part of his final report (entitled "Conclusions,
proposals and recommendations"), and can be found in section
F of that chapter (paras. 362 to 382).
88. In order fully to comprehend both the nature and the
underlying sense of the formulation employed by the
Ecuadorian Special Rapporteur in his monumental work, 35/
the contents of the said section F. of which it forms part,
need to be analysed in their entirety.
89. Such a review is all the more necessary if one remembers
that - in contrast to what happened to the definitions of
minorities put forward by Capotorti and Deschenes - two non-
governmental bodies (the Working Group and the Sub-
Commission) and one governmental organ (the Commission) not
only adopted in toto the "Conclusions, proposals and
recommendations" in volume V of the final report but also
accepted them as the basis for future work on the problems
of indigenous peoples by such dissimilar United Nations
forums as those mentioned.
90. The views that Martinez Cobo offers on his "working
definition" are particularly clear. Reminding us that
arriving at it was a "extremely complicated, difficult and
delicate task" (para. 363), he describes it as "a PURELY
PROVISIONAL formulation" (para. 365) (underlining by this
rapporteur).
91. He then added that the succeeding paragraphs - which
include, of course, the one containing his formulation of
the term "indigenous populations" offer "only tentative
concepts and criteria for placing on the table as merely
preliminary and provisional efforts on the basis of what are
felt to be the relevant criteria". And he ends:
"They are for use as a point of departure and FOR
CRITICISM AND MODIFICATION in the approach to more
precise draft definitions of the concept of indigenous
populations. [They] are intended, therefore, simply TO
STIMULATE REFLECTION AND ANALYSIS leading to the
formulation of more formal proposals for definitions.
The latter should, in turn, ULTIMATELY give rise to a
UNIVERSALLY ACCEPTABLE definition of indigenous
populations ... [which] can and should be used as a
GUIDE ... [for] concrete rules defining the ... rights
and ... freedoms of indigenous populations, for it will
be essential to know WHICH POPULATION GROUPS ARE MEANT
..." (paras. 366 and 367) (underlining by this
rapporteur).
92. Martinez Cobo devotes the succeeding paragraphs (368-
377) to "a number of basic ideas" providing the intellectual
framework that, in his view, must underpin the process of
definition in the multinational/multi-ethnic societies
within which these peoples now live. His key ideas in this
respect are:
(a) Indigenous peoples must be recognized according to
their own perception and conception of themselves in
relation to other groups coexisting with them in the fabric
of the same society;
(b) There must be no attempt to define them according
to the perception of others through the values of foreign
societies or of the dominant sections in such societies;
(c) The right of indigenous peoples to define what and
who is indigenous, and the correlative, the right to
determine what and who is not, must be recognized;
(d) The power of indigenous peoples to determine who
are their members must not be interfered with by the State
concerned, through legislation, regulations or any other
means;
(e) Artificial, arbitrary or manipulatory definitions
must be rejected;
(f) The special position of indigenous peoples within
the society of nation-States existing today derives from
their historical rights to their lands and from their right
to be different and to be considered as different.
93. Describing the depredations on their land and the
constant attacks on their culture in general and their
social and legal institutions and systems within the
societies in which they nowadays live, Martinez Cobo mounts
a vehement defence of these peoples' right to "continue to
exist, to defend their lands, to keep and transmit their
culture, their language, their social and legal institutions
and their way of life, which have been illegally and
unjustifiably attacked" (para. 374). He further emphasizes
that "it is clear that indigenous peoples consider
themselves to be different from the other groups that FORM
THE SOCIETY OF PRESENT-DAV NATION-STATES IN WHICH THEY NOW
FIND THEMSELVES INCLUDED" (para. 376) (underlining by this
rapporteur).
94. In his view, "it is in the context of these situations
and these rights that the question of definition should
arise" (para. 375) - a position shared by this Special
Rapporteur. The latter does not, of course, propose to
tackle a task of such proportions in this report. He feels
he has neither the intellectual baggage and experience for
the job, nor the mandate to undertake it.
95. He has sought to provide an extensive summary of
Martinez Cobo's arguments in this report precisely because
in his opinion one of the ideas presented both in paragraph
376 and in the "working definition" Martinez Cobo puts
forward has to some extent helped - especially when taken
out of the general context of the discussion in the
aforementioned section F - to blur the clear dichotomy
between minorities and indigenous populations to which this
chapter relates. Even the correct idea that indigenous
peoples have the right to define for themselves what and -
especially - who is indigenous (see above, para. 92 (b)) has
served to complicate this vital question further.
96. The progress he has made in his investigations has
convinced the Special Rapporteur that the practical
consequences of this confusion have a bearing on his
mandate. He therefore proposes to expound below his own
thoughts on the subject, thus taking up Martinez Cobo's call
for critical analysis of his "tentative concepts and
criteria" and "merely preliminary and provisional efforts",
as he himself describes his final "working definition" of
indigenous peoples.
97. In his quest for an "ecumenical" definition of
indigenous peoples that might apply as far as possible to
all the cases brought to his attention before (and during)
his mammoth undertaking, Martinez Cobo - consciously or
unconsciously - tends to lump together situations that this
Special Rapporteur believes ought to be differentiated in
view of their (to him) evident and intrinsic
dissimilarities.
98. Thus in paragraph 376, in the context of indigenous
peoples' logical sense of being different from the other
groups with whom they are obliged to coexist in many
present-day States, we read:
"[Indigenous peoples] consider themselves to be the
historical successors of the peoples and nations that
existed on their territories BEFORE THE COMING OF THE
INVADERS of these territories, who eventually PREVAILED
OVER THEM and imposed on them COLONIAL OR OTHER FORMS
OF SUBJUGATION, and whose historical successors now
form the predominant sectors of society" (underlining
by this rapporteur).
99. With this as his starting-point, Martinez Cobo quite
consistently identifies as "indigenous populations", in his
"working definition" (as may be seen in para. 86 above), all
communities, peoples and nations which, among other traits,
possess "historical continuity with pre-invasion and pre-
colonial societies ...". 36/
100. From the conceptual viewpoint, however, it would appear
advisable to begin by differentiating between two - markedly
different - situations, which are put on the same plane and
appear to have equal implications in the aforementioned
texts: namely invasion (which presumably includes invasion
by other indigenous peoples) and the European colonial
phenomenon in Latin America, Africa and Asia.
101. Both problems are linked to the acquisition of land;
37/ but, as Schulte-Tenckhoff 38/ rightly points out, it
would be wrong to place on the same footing the phenomenon
of territorial expansion in general and the unique and
specific historical fact of the organized colonialization of
peoples of other continents by the European Powers, starting
in the sixteenth century.
102. Expansion (in the context of Martinez Cobo's
definition) is linked to a wide variety of factors that are
usually difficult to predict or control, such as the
depletion of resources in particular areas, social tensions
and demographic pressures. The root causes of the original
European drive to acquire colonies, such as control of
trade, the urgent need to obtain resources for wars against
other neighbouring Powers and, above all, the lure of gain
and the need to expand markets as substantive and essential
components of a new pattern of production and of social
relations of a universal character, are very different.
103. Another important writer 39/ draws attention to a
significant characteristic that differentiates between the
two situations, particularly when one considers the
historically established territorial expansion by some
indigenous peoples moving into the territories of other
indigenous groups, especially, but not exclusively, in what
is known as the "Third World".
104. According to Williams, the main feature of expansion is
that there are "many basic similarities" between the
expanding society and the peoples at whose expense the
expansion takes place. When the process of expansion also
leads to the securing of political control over such
territories, it "usually results in the incorporation of the
inhabitants into the body politic" of the nation which has
expanded. He gives the example not only of the cases of the
Iroquoia Confederacy (Haudenasaunee) and the Navajo nation
in relation to their neighbours, but also those of the
incorporation of the Scots by the English and of the Cajun
population of French origin living in Louisiana by the
United States. This example does not, of course, exhaust the
list of possible historical European examples.
105. Rather, according to the same writer, the European
colonial problem "involves the CONQUEST AND CONTROL of
culturally different peoples who are so dissimilar that they
cannot be easily incorporated [into the dominant nation],
but must be ruled as subjects outside the political process"
(underlining by this rapporteur). In his opinion, the best
example of this type of situation is to be found precisely
in "TRANSPLANTED SETTLER NATIONS like the United States".
40/ Other examples may be found not only in North America,
but also in Central America and South America, as well as in
Australia, New Zealand and certain parts of northern Europe.
106. Even the European colonial phenomenon requires further
analysis, because the situation was not identical in all
cases. For example, in 1985, Rodolfo Stavenhagen 41/
advocated a diversified approach to the idea of colonial
societies, stating that:
"A distinction should be made between different
types of colonial societies and the way these have
affected indigenous peoples. For example, in European
settler societies (such as the United States and
Australia), the situation of the indigenous was
different than in those colonies where only the
administration and the export economy were controlled
by the Europeans, but the native social structure was
left relatively untouched (as in most African and Asian
colonies of the French, British, Dutch and Portuguese
empires). These colonies, in turn, differed from those
where the early settlers merged with the local
population and where new social and cultural structures
developed (as in Spanish America and the Philippines)."
107. Another necessary clarification - since we are dealing
with the so-called "question of ethnic minorities" and the
predominant influence that many Eurocentric concepts of the
indigenous problem have had until the present time - relates
to the differences that can be clearly observed in the
development of "nation-States" in the different parts of the
world.
108. In its historical process of development, the European
State has until now been portrayed, rightly or wrongly, 42/
as a "mono-ethnic State": one people, one State. Hence the
obvious corollary of the problem of "traditional"
minorities, which, historically at least, may be defined as
individuals who live outside the State in which their people
is politically organized.
109. By contrast, the vast majority of African and Asian
States are intrinsically and inevitably multi-ethnic, to a
large extent, particularly in the African case, as a result
of the arbitrary drawing of national borders, which, it
should be recalled, were not decided on by the Africans
themselves, but, in nearly all cases, by the various
European colonial empires or, in other words, on the basis
of how those empires agreed to divide the continent up
following the 1885 Congress of Berlin.
110. The fact that the territory in which an ethnic group
had lived from time immemorial and in which it carried on
its traditional way of life should be divided up by the
colonial administration and remain so on completion of the
"process of decolonization" was not, of course, a matter of
great concern to those European Powers at the time of the
above-mentioned agreements, which continued to delimit the
territories of the new decolonized States.
111. It is obvious that, in some African and Asian States,
conflicts between different ethnic groups are a painful fact
of life; and it may even be argued that, in those States, a
definitive and fully satisfactory solution has yet to be
found to the problem of proper political participation by
all the different peoples and ethnic groups that compose
them. 43/
112. Although many nation-States on all continents admit the
existence of "national or ethnic minorities" within their
borders, it is not clear that all these human groups
constitute minorities, at least in the traditional sense in
which the term has been used. Even more problematic - for
the Special Rapporteur, at least - is the fact that, in some
cases, the label of "indigenous peoples" may be the right
one for justifying their internal political activity or
their daily more visible international presence. The
situation of these human communities may quite possibly be a
problem whose conceptual determination is still to be
defined.
113. It should be recalled that, in colonial times - and
even in post-colonial times, as in the case in Latin America
- "indigenous" was the term used by foreign colonizers to
set themselves apart from the native peoples and that this
term continued to distinguish those peoples from the
"criollos" who took over from the colonizers as the dominant
power in post-colonial society.
114. However, the end of traditional colonial power in
Africa and Asia necessarily and radically changed the
concept of what was meant by "indigenous" as a result of a
new political context whose most visible symbol was the
independence of the State. In this new context, the reins of
political power (but not always of economic power) were
taken over by ethnic and national social groups whose
indigenous status was (and is) as unquestionable as that of
other ethnic groups or nations which, although also living
in the territory of the new State, did not emerge from the
process of decolonization as the dominant sectors of this
new political entity which demanded and obtained its
international recognition - as a member, for example, of the
United Nations.
115. Thus from a conceptual point of view, the question of
establishing or re-establishing a clear-cut distinction
between indigenous peoples, on the one hand, and ethnic or
national minorities (or "tribal peoples", to use the terms
of ILO Convention No. 169), on the other, is a basic
necessity for the Special Rapporteur and a task to which he
will devote even greater efforts in the final phase of the
study entrusted to him.
116. For the time being, it is sufficiently clear to him
that, although indigenous peoples are, in nearly all cases
(but certainly not in all cases in Latin America), numerical
minorities in the "national" States in which they now live
(and share some of the characteristics attributed to
"minorities" in some of the definitions that have been
offered), they are not minorities within the United Nations
meaning.
117. The foregoing is true for a wide variety of historical
reasons which are developed below and because of the
distinction that has usually and traditionally been drawn
between them both in the United Nations (proof being the
Working Group's establishment in 1982) and in its
predecessor, the League of Nations. 44/
118. It is also obvious to the Special Rapporteur that a
national or ethnic minority is not, on that ground alone, an
indigenous people. Recently, however, the confusion between
them and the category of "indigenous peoples" has become
quite common both in academic circles and even as a result
of some activities within the United Nations itself.
119. Various factors have contributed to this confused
situation. As has been seen, some elements of Martinez
Cobo's "working definition" have helped to create it. There
is also a tendency to focus on or associate "indigenous"
status with the practice by many different peoples of
certain "traditional" cultural and socio-economic lifestyles
that are "different" from those of modern industrial
society, with its technology and sophisticated patterns of
consumption. 45/
120. The fact that various indigenous groups have applied to
the Human Rights Committee because they consider it entirely
impossible that they will have any chance of success in
asserting their rights before the bureaucracy (or the
courts) of the States within whose borders they now live -
on the basis of article 27 of the International Covenant on
Civil and Political Rights (relating to the individual
rights of persons belonging to minorities) and the Optional
Protocol thereto 46/ - and the fact that the Committee has
ruled in this regard have certainly not helped to dispel
that confusion, but have actually increased it.
121. Moreover, the distinction between minorities and
indigenous peoples which the United Nations strengthened by
establishing the Working Group has, to some extent, been
blurred by the "universalization" (to use Schulte-
Tenckhoff's words) of access to the Working Group which has
been actively promoted by the United Nations itself and, in
particular, by its policy of granting subsidies (travel
costs and living expenses in Geneva) to representatives of
self-proclaimed "indigenous peoples", whose status as such
(particularly in the case of some persons from Africa and
Asia) is, in the Special Rapporteur's opinion, not always
fully established. 47/
122. In addition, some of the criteria included in a
document for general consumption on indigenous peoples which
was published by the United Nations, 48/ and which contains
some particularly controversial views in this regard, is
another element that has gone a long way towards spreading
confusion and creating justified suspicion (in both
governmental and non-governmental circles).
123. Lastly, it should be pointed out that the growing
confusion in this regard has also been created by the
tendency - which is visible in the work of one particular
United Nations Special Rapporteur - to regard as "indigenous
peoples" certain ethnic groups in African countries which at
most might possibly be regarded only as national or ethnic
minorities (as, for example, in the case of the Sudan). 49/
124. It should nevertheless be noted that a recent
initiative by the Sub-Commission (endorsed by the Commission
on Human Rights last March) may be useful in clearing up
some of the prevailing confusion. It is contained in Sub-
Commission resolution 1994/4 of 19 August 1994 and Sub-
Commission decision 1994/115 of 26 August 1994 calling for
the establishment of a working group "to examine, inter
alia, peaceful and constructive solutions to situations
involving minorities". This new body would have to exist
side by side with the Working Group on Indigenous
Populations and serve as a practical element in
distinguishing between the two groups of problems. 50/
125. Despite this confusion which the Special Rapporteur
perceives in respect of the minorities/indigenous peoples
dichotomy and which is so much a matter of concern to him,
there are elements that will help to guide him in his future
work and, in particular, with regard to the priority
direction to be given to his efforts.
126. There is no doubt in his mind that, in the final phase,
the emphasis of the study should be on cases and situations
in which the "indigenous peoples" category is already
established beyond any doubt from a historical and modern-
day point of view; and that his conclusions should be based
primarily on the experience gained on the basis of the study
and of the potential inherent in three of the five types of
situations he has defined as being related to his mandate,
51/ namely: (i) treaties concluded between nation-States and
indigenous peoples (particularly in the Americas and New
Zealand); (ii) the "constructive arrangements" in which
indigenous peoples have taken part; and, naturally, (iii)
the current status of peoples who are not covered by any
other of the types of situations mentioned.
127. The justifications for such conclusions are both legal
and historical. On the one hand, there is no need to
emphasize how important the problem of the so-called
"indigenous treaties" has been for this study from the
outset, on the basis of the "Conclusions, proposals and
recommendations" contained in the study prepared by Martinez
Cobo. 52/
128. As one academic points out, moreover, it is precisely
in the cases referred to in paragraph 126 (i) above that
"the indigenous problem and the problem of treaties overlap
and sometimes become confused, something that happens only
rarely in the Afro-Asian world. In other words, the majority
of communities [according to the criteria referred to in
another part of the study] which might be characterized as
indigenous in Africa and Asia ARE PRECISELY NOT THOSE WHICH
HAVE A TREATY RELATIONSHIP WITH A STATE, WITHIN THE MEANING
OF THE STUDY; rather, many legal-political entities [on
these two continents] which are parties to colonial-era
treaties nowadays represent themselves as independent
States" 53/ (underlining by this rapporteur).
129. The foregoing only confirms some of the views which the
Special Rapporteur expressed in his first progress report,
although with some hesitation:
"For the purpose of the study, one must bear in
mind that contrary to North America, Australia and New
Zealand, where a white settler population has gradually
taken over from indigenous peoples (who for all basic
practical purposes have been reduced to 'numerical
minorities'), present-day African States - with the
sole exception of South Africa 54/ - are governed by
their indigenous inhabitants." 55/
He went on to state:
"It should be added that what was stated above ...
in regard to Africa, is also applicable to Asia; all
States in the region are ruled by autochthonous
Governments as a result of the decolonization process
and the struggle for national liberation. This, of
course, does not preclude the existence of a number of
minorities or indigenous peoples in the multinational
States of the region." 56/
III. FROM THE STATUS OF SOVEREIGN PEOPLES TO THAT OF
VASSALS, WARDS OR ASSIMILATED OR MARGINALIZED PEOPLES
130. In his first progress report, the Special Rapporteur
reached the conclusion, on the basis of numerous treaties
concluded between the parties, that in North America under
French and English colonization - the region for which the
largest volume of information was available to him at that
stage in his research - there was incontrovertible evidence
that during the first two and a half centuries of contacts
between the European colonizer and indigenous peoples the
Europeans recognized "both the international (not internal)
nature of the relations between both parties, and ... the
inherent international personality and legal capacity [of
those peoples] ... resulting from their status as subjects
of international law in accordance with the legal doctrine
of those times", and the status of those peoples as
"sovereign nations, with all the legal implications that
such a term had at the time in international relations". 57/
131. He later added that "there are elements leading to a
similar conclusion with respect to the early contacts of the
Portuguese, Dutch, French, Spanish and British parties in
Africa, Asia and Oceania". 58/
132. At the time, he also noted "it is also true that since
the early decades of the nineteenth century one witnesses
(at least in those same regions) a clear trend in nation-
States aimed at divesting those nations of the very same
sovereign attributes and rights; particularly their land
rights". 59/
133. In the face of such a conclusion - whose importance for
the purposes of this study cannot be overemphasized - that
report drew attention to the need thoroughly to investigate
how so dramatic a change and so complete a retrogression had
occurred, through an examination of the historical and
contemporary developments which had led to that
retrogression, and of the juridical reasoning on which the
present international situation of indigenous nations is
based. 60/
134. This is the background to the central objective of this
part of the report. As has already been observed elsewhere
in the report, advances with research into the so-called
"Royal Companies" (see paras. 14-22 above), together with
the Special Rapporteur's deeper knowledge of the role played
in Africa and Asia by the European Powers in the transition
of many countries on those continents towards independence
(paras. 24 and 110 above), and his access to the thinking of
jurists with which he was barely acquainted or wholly
unfamiliar (para. 26 above) and, finally, the significant
progress made in collecting primary sources, have made it
easier for him to undertake this complex task and to confirm
many of the initial conclusions reached by him in his 1992
report.
135. The process of depriving indigenous nations - either
fully or substantially - of three of the four essential
attributes on which their original status as fully sovereign
entities was founded (i.e. their territory, their recognized
capacity to enter into international relations and their
specific forms of government) did not follow the same course
in the various regions of the world, nor, naturally, did it
assume the same characteristics in each of them.
136. The process took a variety of forms, depending both on
local circumstances and on the requirements of the non-
indigenous element in the bilateral relation that was
established; it also depended on the specific
characteristics of the indigenous party to the relationship.
The impossibility of analysing each and every one of those
variants is clear enough not to require an explanation.
137. Accordingly, although the Special Rapporteur is keenly
aware of the difficulties and possible omissions this
approach entails, he has been compelled to attempt to
generalize, identifying for each region the principal
characteristics of that process of retrogression which
developed in the various parts of the world; he has chosen
to illustrate the process in each region by those examples
in respect of which his research has progressed furthest,
from among those described in his first report. 61/
138. Wherever possible, the Special Rapporteur has
endeavoured to employ examples drawn from the five types of
situation he believes to be relevant to his mandate. 62/
However, in view of their intrinsic importance for the study
(see para. 127 above) he has given priority to situations
deriving from the treaties concluded between those
indigenous nations and their European counterparts.
139. In order to comprehend these situations it is necessary
first of all to review a number of concepts concerning major
features of the history of international law which have been
put forward by a number of authors who have focused their
attention on contractual relations of this type between
indigenous peoples and the European colonists. The Special
Rapporteur believes that these concepts are relevant to this
part of his task.
140. Historians of international law have devoted scant
attention to the history of a universal theory of
international law (or of the law of nations). One noteworthy
exception is Charles Alexandrowicz, 63/ who is considered to
be one of the most eloquent proponents of a non-Eurocentric
approach to the history of international law, in particular
where Africa and Asia are concerned.
141. Other specialists of the history of international law,
such as Jorg Fisch 64/ and Dieter Dorr, 65/ have adopted a
similar approach. Both of them are the intellectual heirs of
M.F. Lindley, 66/ an author of the previous generation.
142. When Lindley analysed the issue of the sovereignty of
what were in his day known as "backward peoples", he was
able to identify three schools of thought, i.e.: (i) that
which recognized their sovereignty (represented, inter alia,
by Vitoria and Grotius); (ii) that which recognized their
sovereignty, albeit conditionally (as advocated, for
example, by Vattel and Martens) and (iii) that which denied
it (a view held by authors such as Westlake and Oppenheim).
In 1926, he made the following observations in this regard:
... "Comparing these three schools of thought, we see
that, extending over some three and a half centuries,
there had been a persistent preponderance of juristic
opinion in favour of the proposition that lands in the
possession of any backward peoples who are politically
organized ought not to be regarded as if they belonged
to no one. But that, and especially in comparatively
modern times, a different doctrine has been contended
for and has numbered among its exponents some well-
known authorities; a doctrine which denies that
International Law recognizes any rights in primitive
peoples to the territory they inhabit, and, in its most
advanced form, demands that such peoples shall have
progressed so far in civilization as to have become
recognized as members of the Family of Nations before
they can be allowed such rights." 67/
143. For his part, Alexandrowicz made the same observation,
albeit more radically. In his view, until the middle of the
nineteenth century a non-discriminatory and universal
concept of international law, based on natural law, which
considered all organized political entities (including those
beyond the seas) as free and equal prevailed. This approach
was superseded by a positivist, Eurocentric and
discriminatory doctrine which not only denied the
international legal personality of the non-European Powers,
but moreover considered their territories to be terra
nullius. Accordingly, his view is that "the way in which the
development of the family of nations has been described in
nineteenth- and twentieth-century treatises of international
law calls for reconsideration". 68/
144. Many of the concepts and ideas advanced in this
connection by Alexandrowicz were deeply influenced by his
knowledge of the situation that developed in Asia between
the sixteenth and the eighteenth centuries; that situation
may not be comparable to those in other regions of the world
during the same period, or to the situation that obtained in
Africa at the end of the nineteenth century. Furthermore, at
no point did he address the evolution of situations in the
United States.
145. Where treaties, in particular, are concerned,
Alexandrowicz's work provides extremely valuable information
on the activities of the Dutch East India Company (VOC),
which managed to displace the initial Portuguese presence in
most of this subregion, and on those of the English East
India Company.
146. Where the important question of treaties between
equals, in contrast to "unequal treaties", is concerned
Alexandrowicz himself categorically observed that "treaty-
making was and is ... one of the essential attributes of
external sovereignty, and thus politically organized
communities concluding treaties on a footing of equality
with sovereign entities must be presumed to have a measure
of independent juridical existence in the international
field". 69/
147. Nevertheless, regarding the assumption (for which there
is widespread support) that unequal treaties affect the
sovereignty of one of the contracting parties, Alexandrowicz
reaches the conclusion - from his interpretation of the
views of classical authors in this field - that "a great
number of treaties originating from the pre-nineteenth
century were either EQUAL TREATIES or, if they were UNEQUAL
and imposed transitory or permanent burdens on the
contracting (indigenous) Rulers, they did not necessarily
result in the SUPPRESSION OF THEIR SOVEREIGNTY or remove
them from the orbit of the natural family of nations"
(underlining by this rapporteur). 70/
148. An important aspect of this question is reflected in
the discriminatory clauses frequently imposed by the "Royal
Companies" on the indigenous governing authorities in the
treaties concluded between them, whereby they were
prohibited from establishing trade relations with the
companies' European competitors. In this connection, in a
well-known case of international litigation decided in 1960
by the International Court of Justice 71/ (concerning the
dispute between India and Portugal over a 1779 treaty
between Portugal and the State of Maharata) the Court
confirmed indigenous sovereignty in such a situation.
149. Another important aspect of the problem of indigenous
treaties relates to the absence of an "indigenous version"
of these instruments, or the fact that, if such a version
exists, it is not deposited with the competent official
agencies of the nation-State concerned in the appropriate
historical archives, nor does it appear in the treaty series
published by the non-indigenous academy. A further important
aspect of this question of the definition of what
constitutes the "authentic text" of such treaties is the
value to be given to the non-indigenous versions held by
these agencies, archive departments or series, which are
virtually always the versions to which reference is made
when addressing these problems.
150. Assuming from the start that there does not exist any
formal definition of "authentic text", a well-known
specialist, Shabtai Rosenne, came to the conclusion - after
a careful analysis of treaties concluded in different
languages - that "for a text of a treaty to be 'authentic'
in the legal sense, the first condition would be that it
should have been adopted by the treaty-adopting body itself"
[i.e., the bodies or parties concerned].
151. In other words, it is the acceptance of the same by all
concluding parties of a given instrument which confers, on
any version of its contents, the character of authentic
text. He also reasserts, in this connection although he is
undoubtedly referring to cases of treaties between States -
the need to seek, among all the possible versions of these
multiple texts, "linguistic concordance to the extent
possible, and JURIDICAL CONCORDANCE IN ALL CASES". 72/
(underlining by present rapporteur). To extrapolate from
this statement to cases involving treaties between States
and indigenous nations does not seem excessively bold.
152. If this reasoning may also be applied - as the Special
Rapporteur believes it can - to the latter, the question
arises of the implications, from the historical angle, of
recognizing the existence of a clearly defined indigenous
political and juridical system, which differs in many
respects from that of the non-indigenous counterpart to such
instruments, at the same time accepting the existence of a
non-European Law of Nations (in force in the other parts of
the world where the recent arrivals conducted legal business
with the indigenous nations) or the unrestricted application
to those areas of the essential principles of the European
Law of Nations, as it existed at a given period. In this
regard, referring to the initial juridical relations
established between sovereign parties in South-East Asia,
Alexandrowicz underscores the need to "consider the position
of [each sovereign party] against the background of local
political organization and legal tradition". 73/
153. None of the issues referred to above is purely
juridical and conceptual in nature, nor are the questions
raised important only as a means of illustrating the
complexity of the problems relating to indigenous treaties
or the need to address them from an angle removed from
Eurocentrism in order to understand them. All of them are
particularly important, above all, as a means of
understanding the scale of the destruction of sovereignty
that was later to affect the indigenous peoples.
154. In his important study on European expansion overseas
and international law, Fisch 74/ emphasizes that the
starting point for European expansion in the fifteenth
century was the nearly total absence of relations with
extra-European peoples, a situation one could qualify as
"negative equality". Once the initial contact had been
established, a broad range of approaches could have been
used to regulate relations, ranging from unilateralism to
reciprocity. Between these two extremes it was possible to
develop variants such as equality and inequality both as
regards the nature of the relations and the juridical
instruments in which they were expressed.
155. According to the same author, from that point onwards
there were two basic possibilities, namely: (i) the new
relation is grounded on reciprocity/mutuality, meaning that
the two subjects establish diplomatic relations with
identical rights and obligations for both, these relations
being confined to rights pertaining to the realm of external
sovereignty; or (ii) one of the two subjects seeks to
achieve a position of dominance by claiming rights without
incurring obligations, or by usurping rights previously
exercised by the other legal-political entity which is its
counterpart.
156. Where European expansion in particular is concerned,
the most common situation was the second of these possible
variants, and its result was colonialism.
157. Nothing better illustrates what is at stake than the
inherent contradiction in the reasoning behind the famous
sentence handed down by the United States Supreme Court - in
the words of its President, Judge Marshall in the famous
WORCESTER V. GEORGIA case of 1932. On the one hand, Marshall
reasons as follows:
"America, separated from Europe by a wide ocean, was
inhabited by a distinct people, divided into separate
nations, independent of each other and of the rest of
the world, having institutions of their own, and
governing themselves by their own laws. It is difficult
to comprehend the proposition, that the inhabitants of
either quarter of the globe could have rightful claims
of dominion over the inhabitants of the other, or over
the lands they occupied; or that the discovery of
either by the other should give the discoverer rights
in the country discovered, which annulled the pre-
existing rights of its ancient possessors." 75/
On the other hand, he advanced the thesis that the United
States of America possessed rights over those very same
nations, on the basis of their "discovery" by Great Britain,
and by virtue as its status as political and territorial
successor of the British.
158. According to Fisch, the main problem - from the angle
of the new dominant Power - is to provide a justification
for its acts of domination. This is of course from the
purely juridical angle; for practical purposes, "might makes
right".
159. In his view, in juridical terms, when entities that
were previously ignorant of one another establish links for
the first time they have no alternative but to adopt the
principle of strict reciprocity, since this is the logical
consequence or corollary of the "negative equality" already
referred to. If in practice one party subsequently
establishes its supremacy over the other, or seeks to
achieve hegemony, it becomes necessary - for a variety of
reasons - for it to seek legal justifications, in order, for
example, to uphold claims against other contending parties
or to counter domestic criticism (e.g. the case of the later
scholastic philosophers).
160. In this context, Fisch distinguishes between
circumstantial justifications and general ones. In the case
of European overseas expansion, the latter played a crucial
role. They had inherent universal applicability and included
such well-known terms as "the right of conquest",
"humanitarian (or civilizing) intervention", etc.
Significantly, moreover, such justifications referred to
rights that were specifically claimed by the European
powers, such as the right to propagate the faith unhindered.
161. A further corollary of these initial mutual relations
is mutual recognition. Fisch draws attention to the fact
that in the case of European expansion, formally established
juridical relations coexisted alongside claims to rights
which they never succeeded in securing in practice or which
could only be secured at a much later stage. Naturally, this
negated the recognition previously extended, a situation
that took extremely diverse forms (as will be seen later in
this report).
162. Fisch makes another important distinction, i.e. the
distinction between various types of international law in
the relations established with the indigenous peoples. These
are: (i) international overseas law; i.e. the body of law
that emerged from the juridical relations established
(principally through treaties) between the European powers
and political entities overseas (indigenous peoples); (ii)
international law relating to lands overseas, which only
concerned relations between the European powers themselves
and in which indigenous peoples figured as "third parties",
and (iii) international law relating to overseas peoples,
which is however little known except through works such as
those of Alexandrowicz (already referred to) and the sources
on which they are based. Of these three variants, clearly
the most significant for the purposes of this study is the
first.
163. According to Fisch, an essential feature of
international law was the universal validity of the "Law of
Nations", notwithstanding the verbiage that was (and is)
occasionally employed regarding an alleged "watershed"
separating the "rule of law" from a huge part of the world's
territory living in a situation "of total lawlessness". In
actual fact, the manifold and extremely diverse relations
that developed within the framework of international law
with the indigenous peoples from the very outset of European
expansion cast doubt on that fiction.
164. In this respect, it should be mentioned that as far as
the development within international law of doctrines
concerning the juridical status of regions outside Europe is
concerned, Asia played a less prominent role than other
regions, such as the Americas (during the sixteenth to the
eighteenth centuries) and Africa (in the nineteenth
century). The main reason for this is that in Asia the
European Powers encountered manifold difficulties in
establishing themselves - particularly initially - as they
were compelled to conform to a pre-existing system of
international relations that was particularly alien to their
traditions; the role and importance of that system were
decisive factors in that part of the world (despite the
impact thereon of the subsequent European presence).
165. Again, according to Fisch, the situation in Africa was
similar to that in Asia during the sixteenth to the
eighteenth centuries; later, however, the situation in that
region became more similar to that which obtained in
English-speaking America during the nineteenth century.
166. From the above, Fisch concludes that it is not possible
to reduce the international relations between the Europeans
and indigenous peoples as a whole to a single pattern. For a
long period - which of course includes the traditional
colonial period following the early contacts - a number of
variants of international law coexisted, and were employed
by the Europeans depending on the various circumstances and
their diverse interests. However, one element is clearly
established in his study: those relations never existed
within a legal vacuum. 76/
167. In other words, according to Fisch, both in theory and
practice - and during the whole era of European expansion -
international law was taken to be universal and its norms
were considered to be applicable to the whole world. The
bone of contention was determining who were subjects of such
a universal system of norms. 77/
168. Two conflicting replies were offered to that question:
(i) the Law of Nations was restricted to the European
"actors" wherever they operated; this thesis was based on
aspirations to European world hegemony and excluded from its
scope any non-Christian or "uncivilized" political entity,
and (ii) each of the independent political entities in the
world would be declared a potential subject of that
universal international law, and would only achieve full
status as such when it established relations with the
"authentic" subjects that already existed (hence the
importance acquired by the so-called "theory of recognition"
both in this discipline and in its diplomatic law branch).
Obviously, in practice it was impossible for either of these
two variants to establish itself. In reality a wide variety
of situations obtained.
169. Fisch's study confirms - as does the subsequent work by
Dorr - the Special Rapporteur's earlier observations 78/
concerning the situation in English-speaking North America
and in particular in respect of the United States of
America: the practice followed by States, as a source of
customary international law, contradicts "conventional
wisdom" which denies indigenous nations legal capacity as
subjects of international law. Quite the contrary: from the
very beginnings of that relationship, the indigenous nations
were considered as capable of preserving peaceful or warlike
relations and of entering into treaties with the European
Powers. 79/
170. Finally, it should be emphasized that in Fisch's view
the heart of the problem is that international law currently
constitutes a system encompassing entities that are
juridically equal, but which must at the same time face
considerable de facto inequalities, which cannot be done
away with merely by proclaiming equality. Consequently, he
concludes that the international juridical order is
compelled to take those inequalities into account and to
guarantee minimum applicable standards to the parties in the
weakest position (e.g. by granting them special rights). 80/
171. Following this presentation, it is necessary to analyse
the various ways in which this process of diminution of the
international legal status of indigenous peoples occurred,
together with the means employed to bring it about. The
process took a great variety of external forms, ranging from
pure and simple annexation of indigenous territory to forms
of so-called "self-government". An extensive array of
methods were also employed, ranging from simple armed force
to treaties themselves.
172. For the purposes of this analysis, the different
situations obtaining in various parts of the world will be
taken into account, and in order to illustrate them
consideration will be given to some of the cases selected in
the first progress report, together with some others
considered relevant on account of the progress made in the
research work.
173. It is indispensable to reiterate once again that the
examples that will be provided in this second progress
report will not be the only ones that will have to be taken
into account by the author in formulating his definitive
conclusions in his final report on this study.
174. As indicated in the introduction, and for the reasons
given there, this second report will be restricted to
examining this process in a number of situations in the
regions of Asia/Oceania and Africa. The evolution of
situations in other regions will be analysed in a later
report.
175. Where Asia/Oceania are concerned, the cases of the
indigenous peoples in Aotearoa/New Zealand, Australia,
Hawaii, Japan, present-day Polynesia under French
administration and all aspects of the Panglong Agreement
(relating to territories covered by present-day Myanmar)
have been addressed by the Special Rapporteur in this
report.
176. Regarding Aotearoa/New Zealand, in his first report 81/
the Special Rapporteur provided a number of basic historical
references concerning certain significant features of the
relations that developed between the Maori people and the
European colonists who arrived in the islands from 1760
onwards. In this second report, attention will focus on an
analysis of the current juridical status and situation of
this indigenous people in the light of the Treaty of
Waitangi (1840) and of various legislative measures
affecting them, promulgated by the authorities of European
origin (Pakeha (i.e. non-Maori) in New Zealand).
177. For obvious reasons, the succinct 1840 Treaty, entered
into by Captain William Hobson - in his status as Consul,
Lieutenant-Governor and Governor-Designate - in the name of
the British Crown with representatives of apparently 500
Maori tribes is the key element in this analysis. Moreover,
the Special Rapporteur has received scant documentation on
this instrument from indigenous sources (nor has he received
a reply from the Government of New Zealand to his
questionnaire) and he has been compelled to base his
judgement of the current situation on secondary sources. 82/
178. Noteworthy among these sources is a relatively recent
analysis of the Treaty by Professor Ian Brownlie, 83/ which
both the Special Rapporteur and his consultant believe to be
of fundamental importance in this field, both in terms of
its coverage and the logic of its judgements. Its importance
resides in the fact that it sheds light on the gap between
Maori and non-Maori positions in respect of this key
document.
179. Several important features of the non-indigenous
version of the Treaty should be emphasized from the outset.
In the preamble, the Queen of England expresses "her desire
to preserve their chieftainship and their lands to [the
Chiefs and subtribes of New Zealand]", as well as her
intention to establish "a government so that no evil will
come to Maori and European living in a state of
lawlessness". According to the same version, in virtue of
article 1 of the Treaty, "the Chiefs of the Confederation
and all the Chiefs WHO HAVE NOT JOINED THAT CONFEDERATION
give ABSOLUTELY to the Queen of England FOR EVER THE
COMPLETE GOVERNMENT OVER THEIR LAND." (underlining by this
rapporteur).
180. Article 2 reads as follows:
"The Queen of England agrees to protect the Chiefs, the
subtribes and all the people of New Zealand in the
unqualified exercise of their chieftainship over their
lands, villages and all their treasures. But on the
other hand the Chiefs of the Confederation and all the
Chiefs will sell land to the Queen at a price agreed to
by the person owning it and by the person buying it
(the latter being) appointed by the Queen as her
purchase agent" (underlining by this rapporteur).
181. In article 3, the Queen undertook to "protect all the
ordinary people of New Zealand and give them the same rights
and duties of citizenship as the people of England."
(underlining by this rapporteur).
182. Brownlie's analysis may be taken to reflect, to a large
extent, non-indigenous views regarding the Maori population.
For example, it adopts an approach - whose principal
characteristic is its vagueness - according to which it
would suffice to address the problems faced by Maoris today
from the angle of human rights and social justice in order
to provide a remedy. He expresses the view that the
application of international human rights standards "should
take care of most of the legitimate concerns of indigenous
peoples".
183. In the same vein he claims - without offering
supporting evidence - that the current commitments
undertaken by New Zealand in this sphere under international
instruments "much enhance" the provisions of the Treaty.
This runs counter to, for example, the Maori
representatives' definite interest in the adoption of the
draft United Nations Declaration on the rights of indigenous
peoples; that interest demonstrates that they do not
consider the international instruments to be adequate as a
possible way of solving their problems.
184. The significance of this approach goes beyond just
ignoring the difference between "human rights" and
"indigenous rights" (the latter category having a much more
extensive conceptual and practical scope). The essential
point is that it denies the relevance of the concept of
"indigenous peoples" when dealing with the Maori issue. To
this English jurist the importance that the Maoris give to
that classification "smacks of nominalism and a sort of
snobbery"; since in his opinion, a claim made in the name of
"indigenous peoples" is "a claim not of equality but of
privilege".
185. Following the same logic, the author adopts a position
very similar to that of a former Canadian Prime Minister,
Mrs. Kim Campbell, who would refer to the indigenous peoples
of Canada as "the first settlers". In dealing with the
questions relating to the Treaty Brownlie takes the view
that it is simply an attempt to treat equitably the various
groups of people arriving successively in the same
territory. He sees the Treaty as one of various ways of
governing "intercommunal relations".
186. His ideas on the meaning and legal nature of the Treaty
are particularly interesting, in view of the influence that
he and hundreds of other well-known jurists have on shaping
opinion in international forums and on the subsequent
"scientific" works relating to subjects of this kind.
187. Although there is no doubt as to the validity of the
Treaty, 84/ Brownlie feels a certain obligation to what he
considers in effect to be the intrinsic paradox of this
instrument. In his view "its execution meant that the
SEPARATE INTERNATIONAL IDENTITY OF THE CONFEDERATION OF
CHIEFS WAS EXTINGUISHED and the procedure of implementation
of the reciprocal promises was transferred from the PLANE OF
INTERNATIONAL LAW to the plane of INTERNAL PUBLIC LAW"
(underlining by this rapporteur). And he adds:
"The Treaty of Waitangi does not fit into the
normal pattern, that is, of external treaty obligations
... it is not binding upon the Crown as a valid
international treaty: for New Zealand it is not a
treaty in force. Its result was the DISAPPEARANCE of
one of the international persons involved in the
transaction. Consequently the Treaty does not have the
same legal status in public international law terms as
the recent international conventions concerning human
rights. However, the INTERNAL RELATIONS of the Treaty
are very similar to those of a currently valid
international agreement. Its enforceability depends
upon statutory recognition of the rights protected by
its provisions." (underlining by this rapporteur.) 85/
188. It has been said that the public-law principles which
apply to the COMMON-LAW system are based on the presumption
that, for all internal purposes, treaties are not binding
upon the Crown unless they have been recognized in
supplementary legislative provisions. In accordance with the
principle of "the supremacy of Parliament", the Treaty is
only enforceable in the framework of the New Zealand legal
system through the adoption of legislative measures.
189. This raises two major questions for the Special
Rapporteur, namely: what is the scope of New Zealand's
parliamentary sovereignty as far as the Treaty is concerned;
and, on what basis is it generally considered in New Zealand
that the Treaty of Waitangi is binding on the Crown -
although not as an international treaty - through New
Zealand as an intermediary but not directly when the Crown
is represented by the United Kingdom?
190. The answer probably lies in an in-depth study of the
provisions of various pieces of legislation 86/ which it has
not yet been possible to undertake. However, whatever the
case may be, it would appear that there has been absolutely
no Maori participation in this legislative process.
191. It should be recalled that most of the non-indigenous
New Zealand population interprets the Treaty as proof of
acceptance by the Maori of the annexation and the subsequent
settlement of white colonists, and believes that the
settlement took place perfectly legitimately, in accordance
with the Treaty's provisions. Likewise, another author 87/
maintains that the Treaty of Waitangi can be compared to
other treaties concluded between England - and also the
United States of America - and indigenous peoples in other
places, whose main aim was to ensure external sovereignty,
leaving internal sovereignty in the hands of the
aboriginals. However, he states that in the case of the
Maori, at a stroke the English secured for themselves both
internal and external sovereignty (in particular, by way of
the clause granting the Maori English citizenship).
192. Another important question relates to the determination
of which version of the Treaty is the authentic one. It is
true that the New Zealand Parliament has acknowledged one
particular version as being authentic, 88/ but this
selection does not appear to have taken into consideration
the versions of the text put forward by the Maori, such as
those compiled in certain secondary sources and, more
particularly, those explicitly described to the Working
Group by the Maori representatives. Moreover, the Special
Rapporteur has found no proof whatsoever that the Maori have
accepted the authenticity of the document which the Pakeha
Parliament has designated as "authentic".
193. This document played a key role in the process of
dispossessing the Maori people of its native land as
perpetrated by the non-indigenous Parliament - a process
which occurred in many other multi-ethnic/multiracial
States. It was influential not only in the institution of
the substantive legislation used to regulate the possession
of land in accordance with norms based on Euro-centric
concepts of relationships with the land, but also in the
setting up of judicial machinery empowered to settle the
legal disputes inevitable arising from the dispossession
process.
194. From the time of the Treaty, pre-emption or purchase by
the Crown as a means of "legal acquisition" of land
prevailed in Aotearoa/New Zealand. In 1862 and 1865 two laws
were passed in this connection, the latter being called the
Native Land Rights Act. An important part of this process
was the Maori Issues Act of 1953.
195. The 1865 Act set up the Maori Land Court which was
mandated to define Maori property rights in relation to the
land traditionally occupied by Maori, and to take decisions
on the subject, and also to convert their title to that land
as established under their rules and customs to a title in
line with the rules of English law, and to clarify the
position of the Crown on all questions pertaining to its
right to occupy land.
196. According to the information so far made available to
the Special Rapporteur, there are currently two principal
forms of land tenure in New Zealand that apply to the
autochthonous population, namely:
(i) land that belongs to the Crown under common law
but is occupied by the Maori in keeping with the
customs and practices of any of their tribes (Part
XIV of the 1953 Maori Issues Act as amended - the
primary purpose of which is to affirm the Crown's
higher title to that land). In general, there is
now little or no land held under this title. Title
has been recognized on the grounds of "discovery",
ancestry (pupuna), conquest/confiscation (raupatu)
and gift (tuku); and
(ii) Freehold land once owned by Maori in fee simple,
whether legal or equitable;
all of which lies under the exclusive jurisdiction of the
Maori Land Court.
197. The Court has played a key role in converting land
owned collectively by Maori under the first form of
ownership into freehold land owned in fee simple (as
individual owners), making it possible for such property to
be purchased by non-indigenous persons. In his study on
Maori land tenure Kawharu 89/ describes how this process
destroyed the system of collective tribal ownership.
198. Another of the major problems caused by this system
appears to have been the excessive fragmentation of Maori
land. It is estimated that the Maori currently only hold
approximately 2 per cent of the national territory.
199. The creation in 1978 of the Waitangi Tribunal brought
with it the hope that corrections would be made to the
original system, centred essentially on the Maori Land
Court. Before any conclusions can be drawn in this area, it
will be necessary to await some of its decisions on more
important cases, such as that relating to the Maori claims
challenging the confiscation of vast tracts of land in the
North Island - on the basis of the New Zealand Settlement
Act of 1863 - which took place following some Maori
uprisings. There are currently over 400 Maori claims waiting
for decision by this body. By the end of 1994, the Tribunal
had only handed down decisions on approximately five of
them. 90/
200. Mention should also be made of the repercussions on
traditional Maori institutions not only of the provisions of
the treaty relating to citizenship (the Native Land Rights
Act (1865) and the Citizenship Act (1977) are also relevant
here), but also of other legislative measures regulating,
among other things, such major issues as marriage, adoption
and inheritance. For example, marriages celebrated in
accordance with Maori tradition since April 1952 have been
declared invalid.
201. Lastly, a recent positive development should be
underlined. On 21 December 1994 the Waikato Maori nation and
the Government of New Zealand reached an agreement on a land
dispute dating back 130 years. The agreement achieved
through the intermediary of the Waitangi Tribunal -
recognizes the indigenous party's right to control some
14,000 hectares of land and grants compensation equivalent
to US$ 109 million. 91/
202. Turning to Australia, the information made available by
the Australian Government in its reply to the Special
Rapporteur's questionnaire and the documentation provided by
the Aboriginal and Torres Strait Islander Commission of
Australia, have been particularly useful.
203. According to some estimates, between 500,000 and
1,000,000 people were living on this island continent
(measuring over 7.5 million km2), in 1788, when the British
claimed sovereignty over New South Wales (at that time the
whole of eastern Australia) and the right to ownership of
all the land in that territory (approximately 1.5 million
square miles). At a stroke, several hundred thousand human
beings - living in hundreds of communities which the
newcomers called tribes - were dispossessed.
204. Until fairly recently non-indigenous conventional
wisdom considered that this had been possible because of
Captain Cook's "discovery" of Australia. But neither this
assertion, nor the claim that the territory was terra
nullius, were in fact defensible because the land had long
been occupied by the indigenous population and its
ancestors, and that population had a very advanced system of
tenure of land and exploitation of that vital resource. In
an attempt to uphold a claim considered by many to be
somewhat extravagant, the colony's authorities emphatically
declared that Australia has been virtually uninhabited when
the first non-indigenous persons arrived (had literally been
terra nullius).
205. This fiction, whose origins can be traced back to the
observations made by a handful of members of Cook's
expedition (who, moreover, never set foot on dry land), was
perpetuated for over two centuries in Australia's official
political and legal history.
206. In his leading work, Reynolds 92/ succinctly explains
the background and subsequent development of this monumental
myth as follows:
"The theory of an uninhabited continent was just too
convenient to surrender lightly. Consequently the gap
between law and reality, law and colonial experience
grew progressively wider. The law retreated farther
from the real world and farther into injustice as the
nineteenth century progressed. In 1819 the Crown Law
Officers determined that New South Wales had been taken
possession of as 'desert and uninhabitable'; the South
Australian Constitution Act (1834) referred to the land
of the colony as being 'waste and unoccupied'. In a
judgement in 1849 the Chief Justice of New South Wales
referred to the 'circumstances of newly discovered and
unpeopled territories'. Forty years later the Privy
Council lent its great authority to the mythology. In
the case of Cooper v. Stuart it was determined that
Australia in 1788 had consisted of a 'tract of
territory practically unoccupied without settled
inhabitants'. That view would have been difficult to
sustain in 1789, let alone in 1889. But such are the
ways of the law that Cooper v. Stuart was considered as
the leading case, binding on Australian courts, and was
deemed to be so by Justice Blackburn in the so-called
Gove Land Rights case in 1971. In Coe v. the
Commonwealth in 1975 Justice Murphy concluded that it
was not binding on the High Court but the doctrine of
terra nullius was not finally overturned until the Mabo
decision in the High Court in June 1992." 93/
207. In the 1830s and 1840s, when it was becoming
increasingly clear that Australia was divided into well-
defined tribal territories and that its indigenous peoples -
both the continent's aboriginals, and the peoples of the
offshore islands - i.e. the Tasmanians and the Torres Strait
Islanders - were putting up strong resistance to the
Europeans intruding on their lands, the question of how the
British had taken possession of the continent began to be a
cause for concern to many of the settlers.
208. A number of explanations were given. One was the "right
of conquest"; but although this theory could have explained
how the British had gained sovereignty over the continent,
it did not justify the total dispossession of the original
inhabitants, since according to legal doctrine at that time
(e.g. Vattel) conquest implied taking possession of the
property of the conquered State, but not of that of its
individual inhabitants.
209. The legal experts looked for another justification, and
found that of prescription of rights. However, as far as
Australia was concerned the second of the requirements
necessary for its application was not met; for not only is
it necessary to have exercised the right in question for a
certain period, but there also has to be general
acquiescence of the other party to the right. However, the
indigenous inhabitants had never ceased to resist the
settlers' aspirations to their land.
210. A further justification was the Europeans' supposed
greater ability to exploit the land.
211. There was another disturbing legal question however,
whatever "legal justifications" might be sought to support
the legitimacy of sovereignty and the European colonizers'
actual taking of possession of Australia. Assuming that both
points could be justified, then the law in force in England
(common law) applied to the island continent.
212. If that was the case, how could it be reasonably argued
that that law did not protect sacrosanct private property,
in this instance the property belonging to the indigenous
population? Why were they not granted fair compensation for
the land that had been snatched from them? The Crown's
acquisition of aboriginal land on the premise of its eminent
domain over that land required, under common law, both the
acquiescence of the aboriginals, and the payment of
compensation for the losses suffered. Neither requirement
had been met in Australia, and the subjects had not even
been worthy of serious discussion in those early days
(although there were some exceptions involving attempts to
purchase aboriginal land - that only served to confirm the
general tendency to ignore these issues in practice).
213. Rivalry over the ownership of land and indigenous
resistance to expanding colonization to a large extent
shaped relations between Whites and "Blacks" in Australian
colonial society during the first half of the nineteenth
century. This gave rise to the first Australian movement for
the defence of indigenous land rights in the 1830s and
1840s.
214. This movement - which obviously was stronger in the
mother country than in the colony - had been a product of
the anti-slavery movement which had achieved a huge victory
with the abolition of slavery in England in 1833, took
concrete form with the founding, in approximately 1840, of
the Society for the protection of foreign aboriginals.
However, as Reynolds himself points out, the leaders of the
anti-slavery movement who became involved in the situation
of indigenous peoples, were faced with a considerable
paradox:
"The reformers were not against colonization. Far
from it. They believed that Europeans had a duty to
carry Christianity and civilization into the far
corners of the world. But the fundamental problem was
land; the refusal to recognize indigenous property
rights was the original sin which coloured every later
development. When their land was taken without consent
or compensation the natives were certain, indeed duty
bound, to resist. The settlers would, with equal
certainty, put down the resistance with a strong hand.
The experience would brutalize them; they would become
guilty, aggressive, in danger of damnation. The
Aborigines would, for their part, remain sullen and
resentful." 94/
215. For a short time the reformers had some influence on
the British Foreign Office, which in the mid-1830s
implemented some measures to improve the fate of
aboriginals, although without much success in the colony.
Other attempts were made by means of the South Australia
Constitution Act, but in the version that was finally
adopted the fiction of the "uninhabited continent" was
upheld and proposals relating to possible compensation to be
paid to the indigenous population for their loss of land
disappeared from the Act.
216. In the period 1838-1840 three "imperial laws" were
promulgated which provided some support for indigenous land
rights. They made provision for the setting up of indigenous
reserves, recognized the right of the indigenous population
to use or occupy Crown land, and provided compensation to
finance their education and well-being.
217. The indigenous reserves were set up in previously
colonized districts from the second half of the nineteenth
century onwards; but unlike the criteria governing similar
reserves in the United States of America (tacit recognition
of the right of indigenous people to the land that was
"reserved" for their use), in Australia the reserves were
not interpreted as an indication of any form of recognition
of indigenous rights, and there was no sense of obligation
incurred by the Europeans vis-a-vis the indigenous
population. It was merely considered as a gesture of
goodwill by the colony towards the continent's original
owners.
218. In as yet uncolonized districts the Australian Waste
Land Act (1848) was applied. This Act granted usufructuary
rights to the aboriginals, who could continue to hunt, fish,
gather and reside on land that had not yet been cultivated
or fenced. In addition, it made provision for the
continuation of the customary indigenous rights over the
land leased to herdsmen.
219. Mention should also be made of the provisions of the
Imperial Crown Land Sale Act (1842), which gave
discretionary powers to the Crown to use resources gained
through the sale of land. In practice it was decided to use
part of this money for aboriginal schools.
220. The responsibility of the imperial authorities for
aboriginal affairs ended in 1846, except in the territory of
Western Australia. Self-government began in Australia in
1856 when the island continent was divided into a number of
states and territories.
221. Following such a substantial change in the colony's
political situation, the provisions made in the "imperial
acts" mentioned above did not prosper. The reform movement
disintegrated. The common-law system (in contrast to statute
law) continued to be used to ratify the expropriation of
indigenous land without any considerations of negotiation or
compensation.
222. Reynolds raises an extremely important legal question.
95/ Would the fact that the European settlers were unaware
of indigenous land rights mean that those rights were
extinguished? The courts of the United States of America -
basing themselves on similar legal principles - have
repeatedly stated that the "aboriginal title" to land (i.e.
a right based on the principle of occupation and ownership
of the territory concerned) does not depend on its express
recognition under a legislative provision enacted by the
non-indigenous power, noting that the title can only be
extinguished through specific action by the federal
Government (an equivalent situation to the customary rights
recognized by common law which can only be extinguished
through an act of Parliament).
223. Consequently one may ask: were the rights to occupy or
to use the land granted to them by the British imperial
Government (for example under the Australian Waste Land Act
of 1848) extinguished at any time? And if the answer is in
the affirmative - and now it is the Special Rapporteur who
is asking the question - what proceeding brought about that
extinction? If, on the other hand, they were not
extinguished the "indigenous title", Reynolds concludes, and
his legal logic appears flawless - remains in force in all
matters pertaining to the Crown lands, which, in fact, still
include over half of Australia.
224. During the first half of the twentieth century non-
indigenous Australia apparently erased the issue of
indigenous land rights from the country's history; the
question disappeared from the political agenda between 1880
and 1950. But the problem of the extinction of the
"indigenous title" arose once again in spite of repeated
efforts to avoid dealing with it on the basis of the fiction
that Australia had not been populated when it was
"discovered". The question remained however that if that
were the case, how were the rights of the people who were
inhabiting it in 1788, (a fact that was known to be true)
extinguished?
225. The original indigenous ownership of the land has since
been the big unresolved question in Australia and has
resulted in repeated indigenous demands for the non-
indigenous power to sign a Makarrata (treaty) with the
autochthonous peoples formally to recognize this original
title. To the best of the Special Rapporteur's knowledge the
Australian Government has not ruled out this possibility,
and in 1988 the Australian authorities declared their
intention to negotiate with the aboriginal peoples as part
of a "reconciliation process" in recognition of the unjust
acts that their forebears had committed against the
aboriginal peoples. 96/
226. The problem lies in the fact that in Australia, as a
general rule, sovereignty and ownership have been thought
inseparable. Those who have fought against the recognition
of the indigenous peoples' original rights to their land
maintain that the recognition of those rights would signify
the establishment of a nation within a nation.
227. As mentioned above (the quotation by Reynolds in para.
206), an investigation of legal cases relating to this
subject demonstrates that the Gove and Mabo cases constitute
the two extremes of the trajectory travelled by the issue in
Australian jurisprudence.
228. In the first