## author : pdh@u.washington.edu
## date : 24.04.96
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World Council of Indigenous Peoples
Consejo Mundial de Pueblos Indigenas
Conseil Mondial de Peuples Indigenes
Ottawa, April 1, 1996
Dear Friends,
We are pleased to enclose for your information the
conclusions emanated from the U.N. Experts Seminar
on Land Rights and Claims, which took part in
Whitehorse, Yukon, March 24-28, 1996.
As these conclusions are the result of consensual
agreement among all the participants present at the
end of the meeting, they are not open to revision,
however, they represent fully the wishes of
indigenous peoples around the table.
We hope you will be able to be in a position to give
this document the widest possible circulation.
We thank you for your cooperation.
Rodrigo Contreras
Executive Director
WCIP Headquarters
100 Argyle Avenue
Ottawa, Ontario K2P 1B6
Canada
Tel: (613) 230-9030
Fax: (613) 230-9340
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Final Unedited Version
CONCLUSIONS AND RECOMMENDATIONS
The United Nations Expert Seminar on Practical
Experiences regarding Indigenous Land Rights and Claims
meeting at Whitehorse, Canada, from 24 to 28 March 1996,
bearing in mind and building upon important work already
accomplished by the United Nations system, in particular
in the area of standard- setting and within the context
of other expert seminars such as the Expert meeting on
indigenous self-government held in Nuuk, Greenland, and
meetings taking into account the new partnerships between
indigenous peoples and the international community based
on mutual respect, reciprocity and harmonious, accessible
and equitable process offers the following conclusions
and recommendations for the consideration of governments,
indigenous peoples and their organizations, and
intergovernmental and non-governmental organizations.
I
1. Indigenous peoples have a distinctive spiritual and
material relationship with their lands, and with the air,
waters, coastal sea, ice, flora, fauna and other
resources.
2. The importance of the issue of the link between self-
determination and the right to land is recognized.
3. The promotion and protection of rights over lands and
resources of indigenous peoples are vital for their
development and cultural survival.
4. Indigenous peoples continue to be affected by the
consequences of colonialism and are often deprived of a
land and resource base.
5. Governments should recognize the lands rights and
titles of indigenous peoples and implement effective and
appropriate procedures and mechanisms, including
constitutional, legal or treaty agreements.
6. Throughout the whole process, the procedures for the
recognition of these rights, should provide for the
effective representation and informed participation of
indigenous peoples as equals. Without this, whatever
legislation or treaty on this matter constitutes an
imposition and not an enduring agreement.
7. States should make best efforts to guarantee access
to land of indigenous peoples deprived of their land or
who lack sufficient land and depend upon it for their
survival, in order to guarantee their cultural and
material development. Mechanisms such as land funds a
claim settlement process where they exist are encouraged.
8. The recognition of rights of indigenous peoples to
specific lands which they occupy cannot be separated from
the recognition of other rights, within larger areas
necessary for their material and cultural development.
9. Governments should review their laws and policies in
order to address the concept of the inherent rights to
self- government and self-management of indigenous
peoples.
10. The existence of a fair constitutional and legal
system, including a fair judicial system, able to
guarantee due process of law is an important framework
for the success and implementation of land settlement
processes. In some countries experience has shown that
the establishment of fair judicial processes for the
implementation of treaties, agreements and other
constructive arrangements with indigenous peoples has
been a useful means towards the respect of such
agreements and the education of the indigenous and
non-indigenous communities.
11. Experience has shown that the equitable and fair
conclusion and implementation of treaties, agreements and
other constructive arrangements relating to land between
states and indigenous peoples can contribute to
environmentally sound and sustainable development for the
benefit of all.
12. The International Decade of the World's Indigenous
People is an important vehicle for substantive
participation of indigenous peoples in the resolution of
land settlements and for increasing constructive
partnerships with states and non- indigenous communities.
13. I.L.O. Convention 169 is regarded by indigenous
peoples as articulating some minimum standards respecting
indigenous land rights. "The United Nations draft
Declaration on the Rights of Indigenous Peoples" as
adopted by the Sub-Commission on Prevention of
Discrimination and Protection of Minorities could be
considered an opportunity for States to adopt an
instrument reflecting a broad consensus among indigenous
peoples about their land and resource rights.
14. Land rights and compensation issues arising from the
taking or use of indigenous lands for military or
security purposes, whether in war or in peacetime, can
raise special problems, which need to be addressed by
Governments and the international community.
15. Where land agreements are intended to protect the
way of life or cultural integrity of indigenous peoples,
social issues should be given equal emphasis to economic
and resource issues.
16. Political will, in the form of a genuine commitment
on the part of Governments, to partnership, in decision
making is essential to the success of co-management
regimes, and to the avoidance of adversarial relations
between the parties to such regimes.
II.
17. Land rights settlements should be freely negotiated,
in good faith and not imposed unilaterally by legislation
or negotiated under duress or threat.
18. Governments should renounce discriminatory legal
doctrines and policies which deny human rights or limit
indigenous land and resource rights. In particular, they
should consider adopting corrective legislation and
policies, within the International Decade, regarding the
following:
(a) The doctrine of terra nullius.
(b) The doctrine that indigenous communities do not
have the capacity to own land or to own land in
their collective capacity.
(c) The doctrine that indigenous land, title or
ownership may be taken or impaired by the state or
third parties without due process of law and
adequate and appropriate compensation.
(d) Doctrines or policies that indigenous lands
must be held in trust regardless of the will of the
indigenous peoples concerned.
(e) Doctrines and policies imposing an
extinguishment of indigenous land rights, title or
ownership.
(f) Policies which exclude some indigenous peoples
from the land claims process established by the
state.
19. Principles or guidelines for land selection or
demarcation of indigenous lands should be jointly
negotiated in a fair and equitable process and without
the imposition of arbitrary criteria.
20. Governments, with indigenous peoples, should
establish fair procedures for reviewing situations and
for taking corrective action in situations in which
indigenous land or resources have been taken or
extinguished through processes which are claimed or are
found to be fundamentally unfair or discriminatory.
21. Governments have a responsibility to ensure
indigenous peoples have access to adequate resources to
research and negotiate their claims so that settlements
are equitable, just and enduring.
22. The structure, mandate, objectives, representation
and accountability of members and mode of operation,
including funding, of co-management structures should be
determined through a process of negotiation with the
indigenous parties to support the principle of equal
participation.
23. It is important that practical effect be given to
the spirit and intent of treaties and land agreements.
This requires a willingness by the parties to act as
partners, not adversaries as well as a clear
understanding of the spirit and intent of treaties and
land agreements by all parties.
24. Parties should negotiate on a basis of equality
acknowledging indigenous leadership, structures,
languages, social and legal systems in all aspects of the
negotiations and implementation. For example, every
effort must be made for agreements relating to land
rights to be drafted in the language of the indigenous
peoples concerned and for the indigenous language version
to have equal status to the state language versions.
25. Interim protection measures, such as moratoriums on
land transfers and on implementation of proposed
development projects, should be taken, as necessary to
protect indigenous lands or lands claimed by indigenous
peoples from environmental degradation and alienation to
third parties. Such measures would contribute to an
atmosphere of good faith and constructive spirit in the
negotiation process.
26. Effective measures for implementation, dispute
resolution, amendment and enforcement of land settlements
and agreements should be provided.
27. There is serious need for training, education and
the required resources so that indigenous peoples may
enter negotiations processes fully informed and
technically equipped about the whole spectrum of
implications of land rights negotiations. Training and
education should also figure prominently in settlements
implementation.
28. The equal participation of indigenous women should
be reflected in all aspects of negotiation and
implementation of land agreements.
29. There is a need to inform the non-indigenous public
about the significance of indigenous land rights for the
very survival of indigenous peoples and respect their
human rights. Land agreements are a way of building new
constructive relationships between indigenous and
non-indigenous communities.
30. Governments are urged to consider the establishment
of impartial mechanisms to oversee and facilitate fair
and equitable conclusions to land claims processes and
the implementation of land agreements, including
international mechanisms as necessary.
31. In its consideration of the establishment of a
permanent forum of indigenous peoples, the United Nations
General Assembly should consider whether the forum could
play a constructive role regarding problems pertaining to
land rights.
32. The United Nations should prepare a study involving
the direct participation of indigenous experts on the
issue of extinguishment of land rights and its
implications with a view to recommending new approaches
in this area with particular regard to the recognition
and implementation of rights.
33. The United Nations and its specialized agencies
should consider providing technical assistance to states
and indigenous peoples to contribute to the resolution of
land claims.
34. The World Bank should consider providing loans to
indigenous peoples directly, in particular in relation to
collectively owned land.
35. The United Nations system, before funding
demarcation projects, should have adequate consultative
mechanisms at all stages of the planning and
implementation of projects.
36. The I.L.O Committee of Experts should clarify the
interpretation of Article 14, paragraph 1 of I.L.O.
Convention No. 169.
+ + +
37. Military and occupation practices, carried out by
governments, individually or collectively, which have an
impact on the ways of the life of indigenous peoples,
should be open to international consideration in
accordance with international human rights standards. The
impact on lands and the ways of the life of indigenous
peoples should be subject to appropriate environmental
review in conjunction with indigenous peoples.
38. It should be recognized that indigenous resource
management ensures the sustainability for future
generations and is rich in practical applications of wild
life, fish and habitat conservation.
39. Parties in land rights negotiation should make
particular efforts to ascertain and act upon the views of
elders in these matters.
40. International cooperation in support of the
administrative management of their lands and resources
should be done in full cooperation with indigenous
peoples.
41. Indigenous peoples should participate in decision
making and policy regarding land, resources and
development at international, regional, national and
local levels, including UN processes such as the CSD and
the Convention on Biological Diversity.
42. The implementation of sustainable development should
take fully into account Indigenous Peoples' values,
knowledge and technologies, in order to ensure resources
for future generations.
43. The United Nations, its Specialized Agencies and
other Inter-governmental organizations should assure that
indigenous peoples cultural diversity, traditional values
and ways of life are protected in terms of Agenda 21 and
the institutions established for its follow up.
44. Where the division of indigenous lands and attempts
to divide these lands through individual titles as well
as the existence of land privitisation policies menace
the material and cultural survival of indigenous peoples
this is a matter of grave concern.
45. Governments should welcome, encourage and open up
trade among indigenous peoples and other parties from
different countries and facilitate such trade.
46. For the purpose of developing resources of
indigenous peoples and communities, States and
Inter-governmental organizations which provide
international aid for such purposes, should make best
efforts to provide development assistance through
organizations of indigenous peoples.
+ + +
47. The United Nations, in the framework of the
International Decade, should consider holding further
consultations, workshops and seminars relating to
indigenous land rights and interests focusing on issues
such as the negotiation process, co-management regimes
and other matters.
48. The Expert Seminar requests that the present report
be submitted to the fourteenth session of the Working
Group on Indigenous Populations and annexed to the
Secretary-General's report on the International Decade to
be presented to the fifty-first session of the General
Assembly and that it be published and given the widest
possible dissemination.
49-55: Additional recommendations for the UN system
based on the text submitted by the Expert Roger Plant to
be included.
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Final unedited version prepared by Preston Hardison from a
document released by the World Council of Indigenous
Peoples. The electronic version has been checked for errors,
but this is not an official copy and any errors remin the
responsibility of the typist. For more information, please
contact the WCIP.