Indigenous and Tribal Peoples in International Law

The two ILO Conventions

Convention No. 107 of 1957, the Indigenous and Tribal Populations Convention. It is the older instrument and its approach was INTEGRATIONIST: it assumed that the appropriate direction of policy was the progressive integration of the populations concerned into the life of the national community.

Convention No. 169 of 1989 revised it, and its approach is the opposite: it proceeds from the recognition of the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development, and to maintain and develop their identities, languages and religions within the framework of the States in which they live.

And the effect of the revision is the fact this chapter turns on. Convention No. 107 is closed to new ratification, but it REMAINS IN FORCE for a State which ratified it and has not ratified Convention No. 169.

India's position, verified from the ILO's ratification list. India RATIFIED CONVENTION No. 107 ON 29 SEPTEMBER 1958, and it is recorded as IN FORCE. CONVENTION No. 169 DOES NOT APPEAR ON INDIA'S LIST. So India is bound by the integrationist instrument of 1957 and not by the self-determination instrument of 1989.

Why India says it has no indigenous peoples

The position is one of definition, not of denial. India's consistent position has been that the whole population of the country is indigenous to it, so that no section can be singled out as INDIGENOUS in the sense in which the term is used of the descendants of a population that preceded colonial settlement in the Americas or Australasia.

Two consequences follow, and both matter to this paper.

First, India uses a different vocabulary. Its constitutional term is SCHEDULED TRIBES, specified by the President under article 342, and its protections are the Fifth and Sixth Schedules under article 244, the reservations in articles 330 and 332, the Commission under article 338A, and the statutes worked in Module II. None of this depends on the international category.

Second, the substantive protections are in some respects stronger than the international minimum. Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191; AIR 1997 SC 3297, held that the word "person" in a Scheduled Areas land transfer regulation includes the GOVERNMENT, so a lease of land in a Scheduled Area to a non-tribal, including government land, is void. Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476, referred the question whether the Dongria Kondh and Kutia Kondh held religious and cultural rights over the Niyamgiri hills TO THE GRAM SABHAS to determine. And Kailas v. State of Maharashtra, (2011) 1 SCC 793; AIR 2011 SC 598, stated that the tribal people are probably the descendants of the original inhabitants of India, that the injustice done to them is a shameful chapter of the country's history, and that they are today the most marginalised of the disadvantaged groups.

Note the tension in that last case. The Court's own description of the Scheduled Tribes as the DESCENDANTS OF THE ORIGINAL INHABITANTS is the first of the characteristics international sources cite for indigenous peoples. A candidate who notices that has spotted the strongest argument against India's position, and should also state India's answer: that a claim of prior habitation, in a country whose entire population has been settled for millennia, cannot be made to bear the same weight as it bears in a settler colony.

What the international instruments would add, and what they would not

They would add a standard of consent. Free, prior and informed consent before development activities is a higher standard than the CONSULTATION which section 4(i) of the Act of 1996 requires for land acquisition in Scheduled Areas.

They would add international supervision. Application of an ILO Convention is supervised by the COMMITTEE OF EXPERTS ON THE APPLICATION OF CONVENTIONS AND RECOMMENDATIONS and by the Conference Committee on the Application of Standards, and TRADE UNIONS AND EMPLOYERS' ORGANIZATIONS have the right to submit observations on a Convention's application to those bodies. That is a route into an international forum which the Indian constitutional scheme does not provide.

They would not add the substance of land protection. Samatha, the Fifth Schedule, the Act of 1996 and the Forest Rights Act 2006 already give more detailed protection of tribal land than any international instrument does; what they lack is the consent standard and the supervision.

And article 27 of the Covenant and article 30 of the Child Convention are already available. Article 27 protects persons belonging to ethnic, religious or linguistic minorities in enjoying their culture, professing their religion and using their language in community with others; and article 30 of the Convention on the Rights of the Child repeats the formula for a child belonging to such a minority OR WHO IS INDIGENOUS. Indigenous peoples can claim minority rights under international law even where a State does not accept the indigenous category.

A worked example

A State proposes a mine on land a tribal community has occupied for generations. Compare the community's position under Indian law and under the international standard.

Under Indian law. The land transfer regulation, on Samatha, prevents a lease to a non-tribal including of government land. Section 4(i) of the Act of 1996 requires the GRAM SABHA TO BE CONSULTED before acquisition and before resettlement; sections 4(k) and (l) make its RECOMMENDATION MANDATORY for minor minerals only. Forest rights are determined by the Gram Sabha under section 6(1) of the Act of 2006. And on Orissa Mining Corporation a claim of religious and cultural right over the site is for the GRAM SABHAS to determine.

Under the international standard for indigenous peoples. The State would have to consult and co-operate WITH A VIEW TO OBTAINING FREE, PRIOR AND INFORMED CONSENT before undertaking a development activity that might have an impact on them. That is a right to refuse, not merely to be heard.

Under the international standard for minorities. The 1992 Declaration gives a right to PARTICIPATE EFFECTIVELY in decisions concerning the regions in which they live, in a manner not incompatible with national legislation, and requires their legitimate interests to be taken into account in national planning.

Which standard applies in India? The minorities standard, and article 27 of the Covenant; not the indigenous standard, because India has not ratified Convention No. 169 and does not accept the category. What applies from the ILO is Convention No. 107 of 1957, ratified on 29 September 1958.

And the practical answer. The community's strongest arguments are domestic, and the Indian material is more specific than anything the international instruments would supply, except on the single question of consent.

Distinctions

What it does NOT mean

It does not mean India denies that tribal communities exist or need protection. It denies the international CATEGORY, and provides for the communities under its own constitutional term, Scheduled Tribes.

It does not mean India is bound by no ILO instrument here. It ratified Convention No. 107 on 29 September 1958 and that Convention remains in force for it.

It does not mean indigenous peoples have no international protection where a State rejects the category. They can claim minority rights, and article 27 of the Covenant and article 30 of the Child Convention apply.

It does not mean the consent standard is universal. It is the standard the Declaration on the Rights of Indigenous Peoples sets, and a declaration is not a treaty.

And it does not mean the Indian protections are weaker across the board. On land they are more detailed than the international instruments; what is missing is the consent standard and international supervision.

Quick revision

No universally accepted definition of indigenous peoples; guidance from the Working Group on Indigenous Populations, ILO Convention No. 169 and the United Nations Declaration on the Rights of Indigenous Peoples. Characteristics: descendants of the peoples who inhabited the land prior to colonization or the establishment of State borders; distinct social, economic and political systems, languages, cultures and beliefs, with determination to maintain them; strong attachment to ancestral lands and natural resources; non-dominant, and SELF-IDENTIFYING as indigenous. The United Nations applies SELF-IDENTIFICATION.

Overlap with minorities: both non-dominant, both wishing to retain identity. Difference: minorities do not necessarily have the long ancestral, traditional and spiritual attachment to land. Claims: minorities emphasise existence, identity, participation and pluralism; indigenous peoples add land and resources, self-determination and decision-making. Standards: FREE, PRIOR AND INFORMED CONSENT before development activities, against a general right to participate for minorities.

ILO: Convention No. 107 of 1957, integrationist, ratified by India on 29 SEPTEMBER 1958 and IN FORCE; Convention No. 169 of 1989, which revises it, NOT ratified by India. Supervision by the Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Standards, with a right in trade unions and employers' organisations to submit observations.

India's position: the whole population is indigenous, so the category does not apply; protections are constitutional, under article 342, article 244 with the Fifth and Sixth Schedules, articles 330, 332 and 338A, and statutory. Samatha, Orissa Mining Corporation and Kailas are the leading cases, and Kailas's description of the tribal people as probably the descendants of the original inhabitants is the strongest argument against the Indian position.

Test yourself

1. Is there a definition of indigenous peoples in international law? No universally accepted one. Guidance comes from the Working Group on Indigenous Populations, ILO Convention No. 169 and the United Nations Declaration on the Rights of Indigenous Peoples.

2. Name the four characteristics usually cited. Descent from the peoples who inhabited the land or territory prior to colonization or the establishment of State borders; distinct social, economic and political systems, languages, cultures and beliefs which they are determined to maintain; strong attachment to ancestral lands and the natural resources in them; and belonging to the non-dominant groups of a society and identifying themselves as indigenous.

3. What distinguishes indigenous peoples from minorities? That minorities do not necessarily have the long ancestral, traditional and spiritual attachment to their lands and territories; and that indigenous peoples additionally claim rights over land and resources, self-determination, and participation in decision-making affecting them.

4. What is the difference in the participation standard? The Declaration on the Rights of Indigenous Peoples requires States to consult and co-operate to obtain their FREE, PRIOR AND INFORMED CONSENT before development activities that might affect them. The Minorities Declaration gives only a general right to participate in decision-making, with their legitimate interests to be taken into account in national planning.

5. Which ILO Convention binds India, and which does not? Convention No. 107 of 1957, the Indigenous and Tribal Populations Convention, ratified on 29 September 1958 and in force. Convention No. 169 of 1989 has not been ratified by India.

6. Why does Convention No. 107 remain in force for India? Because Convention No. 169 revises it and closes it to new ratification, but No. 107 continues to bind a State which ratified it and has not ratified No. 169.

7. What is India's position on the indigenous category, and what is the argument against it? That the whole population of the country is indigenous to it, so no section can be singled out as indigenous in the settler-colonial sense. The argument against it is that the Supreme Court itself, in Kailas v. State of Maharashtra, described the tribal people as probably the descendants of the original inhabitants of India, which is the first of the characteristics international sources cite.