Table of Contents
The Nature of the Law and Indigenous Peoples
There is no one single definition of the term ‘indigenous peoples.’
A definition only becomes important when a government links funding to a minority group.
In general though, indigenous groups practice unique traditions, retaining social, cultural, economic and political characteristics that are distinct from those of dominant societies.
The Cobo Report (properly known as the Study of the problem of discrimination against indigenous populations: final report) found some countries use self-identification or self-declaration as a means of deciding who could officially be classified as an ‘indigenous person.’
The diversity of indigenous peoples means there is no official definition of the term adopted by any UN-system body.
An understanding of this term is based on:
- Self-Identification as Indigenous Peoples
- Historical continuity with pre-colonial and/or pre-settler societies, and therefore, a strong link to territories and surrounding natural resources
- Distinct social, economic or political systems; language, culture and beliefs
- Form non-dominant groups of society
- Resolve to maintain and reproduce their ancestral environments and systems as distinctive peoples and communities
The UN views self-identification as the most important indicator of whether someone is part of an indigenous group, as opposed to race.
In Australia, the Commonwealth Government appears to apply a three part test:
- Indigenous Descent - is the person a direct descendant of Aboriginal/Torres Strait Islander people?
- Self-Identification - does the person consider themselves Aboriginal/Torres Strait Islander?
- Community Recognition - does the community the person claims to be a part of recognise them (e.g. are they a member of an Aboriginal tribe)?
This is system is used to determine eligibility for certain programs and benefits, such as ABSTUDY.
The Global Loss of Rights for Indigenous Peoples
Indigenous people belong to the most marginalised and vulnerable groups of people in the world – not only physical resources are taken from them, but also cultural and intellectual property.
Decision making is not made by those affected (people who live on the land) but by governments and corporations who have an economic interest – not the interest people. This is in the form of:
- Affinity of indigenous peoples with land and nature: industrialisation and modern farming practices have displaced indigenous peoples and degraded the natural environment which they depend on.
- Social and cultural traditions of indigenous peoples: culture and tradition of indigenous peoples has been undermined or destroyed by the lifestyles, concepts and values of the dominant societies.
Indigenous people have been disposed of land, resources, livelihoods, intellectual property (traditional knowledge and folklore) and culture.
The United Nations Declaration on the Rights of Indigenous Peoples (2007) sets out rights indigenous peoples are entitled to, setting a minimum standard of recognition for these rights.
Since the declaration, there has been little progress in legal recognition of these rights (making international law ineffective). Rights of indigenous people include:
The right to control and safeguard their traditional land and any natural resources within that land; the right to compensation for loss of property (not always possible as developing countries are focused on improving their economy and can’t make compensation for loss of property/resources)
The right to have their human rights respected
The right to preserve their culture, language, traditions and lifestyles
The right to historical intellectual property (e.g. traditional art)
The right to self-determination
Karen people in Thailand: these people are concerned about Thai schools in their villages, where their own culture is deliberately devalued by teachers, with all-day schooling affected children to experience their culture through their parents, and efforts of elders. There are also persistent plans to resettle them or enforce modernisation of their subsistence-oriented land use system.
Phnong in Cambodia: the government sold 200000 hectares of land to an offshore company to use for a pine plantation – some of this land belonging to the Phnong people. This plantation destroyed farmland, crops, grazing land, ancestral forests and traditional burial sites. Consequences of this destruction included loss of food, medicine, fuel, income, culture, spiritual life and religious practices associated with the land
The Need for Legal Recognition of Indigenous Peoples
- Indigenous peoples are usually dominated by other societies, which leads to a loss of power.
- They have endured a lack of regard for the consequences of legislation and policies.
- Legal recognition ensures a formal acknowledgement of the rights of indigenous peoples.
- Sovereignty of indigenous peoples isn’t recognised internationally as they are not eligible to be members of the UN.
- There are few regional and intergovernmental agencies dealing specifically with indigenous peoples.
- Subsequently, lack of intergovernmental cooperation on issues is predominantly done by NGOs and not cooperation between nation states.
- The UN only advocates legal recognition of indigenous peoples to ensure ongoing rights to self-determination, land, resources in/on/under the land and their culture.
- In Australia, the government has accepted no general trust obligation to indigenous peoples, and no obligation has been developed by courts.
- Legal recognition of indigenous communities occurs largely through the native title process, which is mostly conducted in the federal court as a judicial inquiry.
- Meeting this test has proved to be difficulty for group whose traditional territories are not in remote Australia.
Difficulties in determining their own future
- The United Nations Declaration on the Rights of Indigenous Peoples (2007) states indigenous peoples have the right to self-determination.
- This means they have the right to determine their political status and freely pursue their economic, social and cultural development.
- The declaration also states they have the right to autonomy in internal and local affairs, as well as means for financing these autonomous functions.
- The right of self-determination is important because it is essential for the effective guarantee of individual human rights and also helps promote and strengthen those rights.
- Claims to independence are more likely to be rejected, despite claims to cultural autonomy may be more readily accepted.
- Self-determination, ‘having the right and opportunity to decide for oneself’ is important when considering how governments, elected by the majority of a population, limit freedoms of minority groups.
- Also, complete autonomy for indigenous people would entail having independent finances.
- As long as governments maintain control of natural resources found on traditional lands, no indigenous person will have the means to generate their own wealth.
- A lack of financial independence makes it difficult for indigenous peoples to determine their own future.
Example - Uighur Province, China
Riots between the indigenous Uighurs and the majority population in western China – the Uighurs live in Xinjiang, rich in agricultural and mineral resources. Potential for development has led the Chinese government to encourage millions of Han Chinese to move to exploit them. The Uighurs resent their loss of land and resources, and the government is fearful of losing wealth in the province if the Uighurs were to separate from China and become autonomous.
Responses to Indigenous Issues
- A ‘nation state’ is an independent unit with its own territory and system of government.
- Each nation state will have sovereignty, meaning it is autonomous and is able to make laws exclusively for the benefits of itself without influence or control by outside forces.
- Each state system has a distinctive relationship to international law and each state is responsible for applying international law within its legal system.
- Therefore, for indigenous peoples to gain protection, the sovereign nation must give up its domestic jurisdiction over these matters – usually done by accepting a treaty or convention obligation.
- However, for many nations there is a fear that if they were to recognise indigenous people’s aspirations of self-determination, the national entity could separate into separate countries.
- By participating in the various conferences and agreeing to the end results, it must be willing to have its own record with respect to human rights held up to world scrutiny.
- Indigenous peoples living in a sovereign nation will be subject to the laws of that nation, which can either protect or grant rights.
- A problem with state sovereignty is that international law allows independence of a nation state and therefore, the state is free to legislate at will about rights of indigenous peoples. They are at the mercy of the government, which controls their rights.
- Indigenous peoples are often left out of general economic development, or, more importantly, are further subjugated because of it.
- The global economy allows for transnational companies, with the permission of governments, to invest capital to exploit resources.
Legal and Non-Legal Measures in Achieving Justice
The United Nations
- The UN plays the most fundamental role in protecting indigenous peoples.
- It has been the leader in formulating the rights of indigenous peoples, acting as a catalyst for global responses to issues affecting indigenous peoples.
- The UN Declaration on the Rights of Indigenous Peoples (2007) outlined issues concerning indigenous peoples and stated guidelines for mechanisms that would ensure the human rights of indigenous peoples were recognised and protected.
- The UN forms committees consisting of representatives from member states who investigate situations of indigenous peoples, which make recommendations that can be incorporated into international instruments.
- The UN also educates people about indigenous rights, and formed the Permanent Forum on Indigenous Issues which is an advisory body with a mandate to discuss indigenous issues related to economic and social development, culture, the environment, health and human rights.
- The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) provides the Human Rights Council with advice in the form of studies and research on the rights of indigenous peoples as directed by the Council. They can also suggest proposals to the Council for consideration and approval.
- Also, a new position for the UN was created in 2000; the Special Rapporteur for the Commission on Human Rights. The Rapporteur:
- Promotes good practices (new laws, government programs) between indigenous peoples and states, to implement international standards concerning the rights of indigenous peoples
- Reports on the overall human rights situations of indigenous peoples in selected countries Addresses specific cases of alleged violations of the rights of indigenous peoples through communications with Governments and others.
- Conducts or contributes to thematic studies on topics of special importance regarding the promotion and protection of the rights of indigenous peoples.
- The General Assembly has emphasised the need for consultation and cooperation with indigenous people whenever reforms are planned and implemented.
- Without that communication and response to opinions expressed by indigenous people, any reforms may be paternalistic and not what the recipients need.
- The UN is not a world government with powers to compel its members to take a particular action. The UN can only do what its member governments allow it to do. If any member government resists or ignores a UN recommendation, there is little the UN can do to force that government to change its ways.
- The UN does not allow NGOs or members of the public to have any decision-making role in its deliberations.
- With so few international instruments directly dealing with Indigenous Peoples issues, it is often the responsibility of NGOs and Indigenous Peoples Organisations (IPOs) to report on abuses.
- These set standards and guide countries – most instruments are part of the United Nations.
- International instruments create legally binding agreements on those nation states that sign them, but they need state ratification to be effective.
- Treaties, also called conventions, are agreements between two or more states.
- These treaties or conventions are governed by principles of international law.
- Declarations can be a form of treaty, which usually contains a set of principles or rights that signatory states feel should be adopted.
- Declarations are usually wide guidelines that are not considered legally binding.
- The two main international instruments for indigenous peoples are:
- The Declaration on the Rights of Indigenous Peoples (2007), which sets out individual and collective rights of indigenous peoples.
- Australia voted against this declaration because of the issue of self-determination.
- Australia supported the idea that indigenous peoples should be involved in the decision-making process within a country but rejected the idea that indigenous people might form their own nation state within a country and seek to have state sovereignty, entitling them to political autonomy.
- ILO Convention #169, which reflects changes in the position of indigenous and tribal populations and greater understanding of their position by governments, employers and workers.
- The ILO seeks the promotion of social justice and internationally recognise human and labour rights.
- The ILO recommends action but relies on compliance by member nations.
- Failure of compliance can result in expulsion from the ILO, United Nations sanctions, world disapproval and the ICJ may have to hear a referral by the ILO for non-compliance.
- The Declaration on the Rights of Indigenous Peoples (2007), which sets out individual and collective rights of indigenous peoples.
International Court of Justice
- This is the main judicial arm of the UN. It has jurisdiction over 2 types of matters: disputed cases and advisory opinions.
- Only recognised nations may directly bring a dispute before the court.
- This means indigenous peoples can’t bring their own case as they are not recognised as their own nation.
- Decisions are legally binding and become part of customary international law.
- However, its powers of enforcement are limited as it must rely on the willingness of the party nations to comply, or depend on pressure from the world or the UN.
- Advisory opinions may be applied, but these decisions are not legally binding, but are considered as persuasive statements of legal opinion.
- Human Rights Commission
- This hears complaints concerning infringements of the International Covenant on Civil and Political Rights.
- Complaints can be made by nations or individuals (partially effective), provided the individual’s country has also signed the protocol.
- A further requirement is all domestic avenues of complaint must have been exhausted.
- This means it takes a long time for indigenous peoples to be heard, and it has to be up to the country they are in to bring the case forward, making it ineffective.
- International Labor Organisation (ILO) Commissions of Inquiry
- This hears complaints involving infringements of ILO conventions.
- Complaints can be brought by any member state or the ILO itself to the investigation of individual groups.
- The findings are enforceable only if the parties voluntarily accept them.
- European Court of Human Rights
- This has wide powers of member nations who infringe the European Convention on Human Rights.
- Only member states can directly bring actions in the court.
- A drawback is the court will only have jurisdiction if the state complained against voluntarily accepts it.
- Also, it only has jurisdiction over indigenous peoples of member states.
- This is the most effective mechanism of justice for indigenous peoples, but only affects EU/EEA countries.
- NGOs often serve as early warning mechanisms and help monitor and implement international agreements.
- They bring to the attention to states or the international community issues/injustices dealing specifically with indigenous issues through the media, or though well-known personalities.
- They can pressure governments, but enforce anything.
- They bring knowledge and information, new issues and expert advice to intergovernmental negotiations, and can play different roles in dealing with indigenous issues, including:
- Setting agendas
- Negotiating outcomes (e.g. proposing alternative language and solutions)
- Conferring legitimacy
- Implementing solutions
- It is often the responsibility of NGOs, e.g. Amnesty to report on abuses. It is hoped these groups will put pressure on countries to enforce UN declarations or legally binding decisions from complaint mechanisms.
- This can highlight indigenous affairs and encourage public discussion.
- To be effective, the media needs to be independent of government so it can analyse indigenous issues without censorship or bias.
- Sometimes media can be owned by the government and only portray what they want to be shown.
- The use of media by indigenous peoples in its traditional and new media forms enables them to promote their cultures and languages, to transmit their knowledge, and to represent their own views that may differ from mainstream analysis.
- UNESCO supports initiatives aimed at empowering people in indigenous communities, using media they can adopt easily with the appropriate training to reach out to other communities, NGOs, government institutions and decision-makers.
Australia’s Federal Responses
Under Section 51 of the Constitution, the federal government can make laws under the external affairs power to give effect to its international treaty obligations.
The High Court
- The High Court of Australia has passed [two major decisions regarding indigenous peoples:
- Mabo v Queensland 1992, recognising native title and rejecting Terra Nullius
- Wik v Queensland 1996, giving Aboriginal people the right to some land for traditional purposes, even when leased to other people.
- The Commonwealth Government responded to the Mabo decisions by including native title into legislation with the Native Title Act 1993 (Cth).
- The Native Title Amendment Act 1998 (Cth) was in response to the Wik Decision.
- This amendment made it more difficult for Aborigines to claim land rights.
- Other legislation supporting indigenous rights, but not exclusive includes the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, Age Discrimination Act 2004 and Human Rights and Equal Opportunity Commission Act 1986.
- Australia has signed, ratified and been a party to international agreements of a bilateral and multilateral nature, affecting indigenous peoples.
- Australia is a party to international instruments such as the ICCPR, ICESCR, ICRDC and The Genocide Convention.
- It has signed these agreements but only legislated the Mabo and Wik Decisions.
- Australia has not entrenched in its domestic law the ICESCR, which was ratified in 1975
- In 2007, the Northern Territory National Emergency Response Act 2007 (Cth) was enacted.
- A report (Little Children are Sacred) released by the Northern Territory Government revealed the extent of sexual abuse and neglect of children in remote Aboriginal communities.
Monash University has an extremely thorough debunk about how incorrect this report actually is. There’s also an entire discussion about it on the ABC podcast if you prefer that.
- The Northern Territory National Emergency Response Act 2007 applies only to Indigenous Australians, and is clearly discriminatory.
- The United Nations, Amnesty International and other bodies (only an opinion!) have strongly criticised the partial suspension of the Racial Discrimination Act (because of NT Act), which has placed Australia in breach of its international legal obligations.
- Another criticism of the federal government is they are reactive and not proactive.
- Most legislation that deals directly with indigenous issues is made after a High Court decision.
- Governments see these decisions as being politically very sensitive and therefore could be a reason for a loss at election time.
Australian Human Rights Commission
- A statutory body funded by, but operating independently of, the Australian Government.
- It has the responsibility for investigating alleged infringements under Australia’s anti-discrimination legislation.
- The Commission falls under the portfolio of the Attorney-General of Australia (appoints the HR Commissioner. Supposed to be independent but will have favour towards the government of the time).
National Native Title Tribunal
- An impartial, independent administrative agency, established by the Native Title Act 1993 (Cth).
- The Tribunal is not a court and therefore cannot decide whether native title exists or does not exist.
FaHCSIA (Families, Housing, Community Services and Indigenous Affairs)
- Supports Indigenous Australians through a range of programs and services including Close the Gap initiatives, a commitment by all Australian governments to work towards a better future for Aboriginal and Torres Strait Islander peoples.
- It aims to close the gap of Indigenous disadvantage in areas such as health, housing, education and employment.
- The Aboriginal Land Rights Act 1983 (NSW) established a network of Aboriginal Land Councils, regional and local levels.
- Under the Act, land may be claimed and its purchases funded through the Land Councils.
- Aboriginal Affairs is part of the NSW Government Department of Education and Communities.
- Aboriginal Affairs in NSW’s administers the Aboriginal Land Rights Act 1983, providing accurate, timely and comprehensive input into government policy development.
- Land councils have a history of corruption; questionable that they are providing enough services for all indigenous groups.
Contemporary Issues Concerning Indigenous Peoples
Loss of Cultural Rights
- Saving indigenous languages is a matter of great urgency and is crucial to ensuring the protection of the cultural identity and dignity of indigenous peoples and safeguarding their traditional heritage.
- According to estimates by UNESCO, at least 43% of the 6000 languages spoken around the world are endangered.
- Language rights are inadequately recognised in many countries, and are often neglected by national legislation and policy.
- Certain languages are given official status and recognition while the majority of languages, particularly indigenous languages, are denied legal recognition.
- Actions of the UN to promote the rights of indigenous peoples such as retaining and reviving lost languages have been supported by many NGOs and the media.
- The United Nations Declaration on the Rights of Indigenous Peoples (2007) sends a clear message reaffirming the human rights of the world’s indigenous peoples.
- This action bears political, legal and symbolic and moral significance, forcing intergovernmental organisations to critically reflect upon their engagement with indigenous peoples’ issues.
- By doing this, the Declaration asks nations to pay attention to treating indigenous peoples’ rights as seriously as the rights of all other citizens.
- The Permanent Forum on Indigenous Issues is an advisory, but permanent body with a mandate to specifically discuss indigenous issues related to economic and social development, culture, the environment, education, health and human rights.
- Another mechanism is the Expert Mechanism on the Rights of Indigenous Peoples which provides the Human Rights Council with thematic advice in the form of studies in research. It may also suggest proposals to the Council.
- The Declaration is a non-binding document.
- When the UN General Assembly voted to adopt the Declaration in 2007, 144 countries voted in favour and 4 against. Australia, New Zealand, the US and Canada voted against the Declaration, stating they have upheld adequate human rights for indigenous peoples in their own country.
Ah yes, three of the countries which have the most well-known history of abuses against their indigenous people “upheld human rights for indigenous people”.
- Critics have questioned these claims to the fulfilment of international standards, as it is easier for a nation to keep indigenous languages, which has a non-economic effect, compared to other rights such as land rights which would have economic cost to a nation.
Indigenous languages in modern nations
- Most rights outlined in the Declaration are already recognised and protected in Australia.
- The Declaration doesn’t suggest any ‘new’ or ‘special’ rights for indigenous people.
- It draws together existing rights from other international laws and conventions and explains how they apply to indigenous peoples.
- The update of the constitution in 2000 acknowledged the rights to one’s language and culture for the Sami as indigenous people, the Roma and other groups which have the right to preserve and develop their own language and culture, and the right to use the Sami language when associating with authorities is legislated.
- The Waitangi Tribunal in 1983 heard a claim in relation to the protection of the Maori language.
- In 1987, Maori became an official language of New Zealand.
- There has been an increase in the use of Maori language, and there are now Maori language schools, a Maori radio station and a sole Maori language TV channel broadcast.
- The Karen people in Burma are oppressed politically, and have no representation in domestic government.
- Culturally, they are banned from studying their own language in Burmese schools and many Karen newspapers and books are banned.
- Economically, their fields and plots of land were confiscated and nationalised.
- They continue to be persecuted today.
- The documents for indigenous land rights in international law include the Indigenous and Tribal Peoples Convention, ILO 169, the Declaration on the Rights of Indigenous Peoples, the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights.
- The UN Declaration on the Rights of Indigenous Peoples asserts the rights of indigenous peoples to retain and use their histories, languages, written and oral traditions and to retain their own names for communities, places and persons.
- Although the UNDRIP is not a treaty and is not legally binding, it is acknowledged that the Declaration reflects provisions in international treaties that many nation-states have ratified, such as the International Convention on the Elimination on All Forms of Racial Discrimination (mainly developed countries).
- Article 10 of the UNDRIP expressly forbids forced evictions and states that any relocation must be the result of free, prior and informed consent.
“Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”
- The Declaration is not legally binding.
- Land issues represent a grey area in international law, as the right to property has not acquired as strong protection as other rights.
- Also, the language of the Declaration does not specify whether indigenous peoples have the right to ownership – rather, it adopts a broad approach that may include ownership or possession.
- Often national economic development is invoked as the justification for the acquisition of the lands of indigenous peoples, regardless of who may be harmed by the development – developing countries have more disadvantaged indigenous peoples.
Case Study - Canada
The most effective is probably Canada with the Nunavut Territory. In exchange for surrendering their aboriginal title to land in Nunavut, the Inuit received constitutionally protected rights to land, money, renewable resources and social and political development. This was a modern treaty that exchanged undefined title for defined rights.
The agreement also provided for membership of institutions of public government, a corner-stone of Inuit participation within the public government structure established as a result of the land claim. Nunavut has a public government, which operates within the principles of Canadian parliamentary democracy.
The government of Nunavut is committed to Inuit Qaujimajatuqangit (IQ). IQ embodies Inuit traditional knowledge and values and guides the government in forming decisions, policies and laws that reflect the key philosophies, attitudes and practices of Nunavut’s Inuit majority.
Case Study - Uganda
The Basongora live in Uganda. They lost 90% of their land in 1900-55 to establish the Queen Elizabeth National Park. The Basongora were evicted and no alternative settlement was provided.
Post-independence governments have done little to address the social injustice suffered by the community. Instead, more Basongora land has been parcelled out for government development projects and military use, without community consultation.
In the 1990s, the Ugandan government recognized the Basongora as a minority that had to be protected and provided with alternative land. In 1999, large numbers left and settled in the Democratic Republic of Congo, where in 2006 they were driven back to Uganda and were forced to resettle with other minority groups in an area that created ethnic tensions between the various groups.
With a final draft of the national land policy – containing important recognition of the rights of pastoralists – soon to be tabled before parliament, maybe the Basongora will finally see a peaceful and equitable end to their predicament – however, this still hasn’t happened.
- NGOs represent indigenous groups worldwide and create media attention for any issues which need to be addressed.
- Indigenous peoples of the Amazon region have organised themselves into the Coordinating Body for the Indigenous Peoples’ Organisations of the Amazon Basin and are pressing for their rights to their lands, as well as their rights to participate in decisions affecting their lands.
Legal Rights to Natural Resources
The United Nations Declaration on the Rights of Indigenous Peoples recognises ‘right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.’
- In Canada, indigenous self-government is provided by the Indian Act, which includes various degrees of control over natural resources.
- In the Inter-American Court of Human Rights, the case Mayagna (Sumo) Community of Awas Tingni v Nicaragua, interpretation of the rights to property was made clear in its judgment that indigenous peoples rights to their lands include rights to the resources there and these rights of ownership are held by the community in their collective capacity and according to their own customary law, values, customs, etc.
- Indigenous peoples can also submit complaints to regional human rights bodies and UN treaty bodies, however, they must have already exhausted domestic remedies.
- Even if rulings are in favour of indigenous peoples, there can be issues of ensuring compliance and enforcement.
- For ethnic nationalities, the best they can do is to broaden the space for free political activities (protest) though a combination of mobilisation for public participation, interethnic cooperation and continued self- defence.
- There are no legal grounds to enforce rights to national resources determined by the nation-state.
- The Adivasis are one of the most vulnerable and marginalised group in India with gaps in poverty, literacy and mortality between tribal and non-tribal groups widening despite economic change.
- These challenges have increased with the arrival of global mining giants which governments have used the Land Acquisition Act (1894) to displace millions from their land.
- In January 2011, in the state of Odisha, the government gave clearance to a Korean organisation for a US $12 billion refinery and captive port.
- People are becoming more favourable towards the employment generated by the resulting mining boom.
- Minorities and indigenous peoples who have had their land rights violated in connection with a development or extractive (mining) project should be able to access legal procedures within their state. However, many of these violations occur in countries with inoperative or ineffective judicial systems, weak governance or internal conflicts.
- In countries where a fair local judiciary system exists, legal procedures can be costly, time consuming, psychologically daunting and require expert legal assistance.
- For many marginalised communities, long travel distances and language barriers are further obstacles.
- This renders national legal measures inaccessible to most minorities.
- In countries such as Canada and the US, some indigenous resources are held and managed by the state under a system of trusteeship which doesn’t allow people to take money from royalties acquired in mining.
- Submissions by indigenous groups to the Working Group of Indigenous Populations have documented charges of mismanagement and abuses of these systems of trusteeship.
- The Sami people who are indigenous to Norway, Sweden, Finland and Russia do not have any legally settled rights to lands or resources in Norway.
- Norway’s constitution provides conditions necessary for the Sami to protect Sami language, culture and society.
- The government denies Sami claims to lands and resources, and the issue remains unsettled.
- Pending legislation that would deal with land, resources and governance in the traditional Sami area of northern Norway is strongly opposed by the Sami Parliament.
Intellectual Property Rights
- This is a concept development out of a predominantly Western legal traditional and has been promoted by the World Intellectual Property Organisation (WIPO) which is a UN push to see the diverse wealth of the world’s indigenous, intangible cultural heritage better valued and protected against perceived, ongoing misappropriation and misuse.
The British Museum would like to send you a message.
- Nation states across the world have difficulties reconciling locally indigenous traditions, laws and cultural norms with western legal traditions, leaving indigenous peoples individual and communal intellectual property rights largely unprotected.
International Legal Rights
- The UNDRIP recognises indigenous peoples’ rights to intellectual property.
- The Western preoccupation with individual expression that underpins these rights are at odds with many indigenous collective experiences of cultural expression, as intellectual property is usually directed to individuals.
For example, you probably learned about how Aboriginal people don’t claim to “own” the land of Australia in the same way Western people do. The concept of ownership is an extremely Western idea that didn’t exist in a lot of American, Pacific Islander, and Aboriginal cultures.
- Specific copyright conventions are very old, with little updates.
- WIPO funds an Indigenous Intellectual Property Law Fellowship Program which pays for an indigenous expert on intellectual property law to advise WIPO on legal and policy matters relating to customary,
- Minority Rights Group International (MRG) works to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples worldwide, promoting cooperation and understanding between communities.
- Their activities are focused on international advocacy, training, publishing and outreach.
- MRG works with over 150 organisations in nearly 50 countries, and has consultative status with the United Nations Economic and Social Council (ECOSOC).