The original international formulation of the definition of indigenous peoples was developed by the United Nations Special Rapporteur,Martinez Cobo. In his study on the discrimination against indigenous peoples, he adopted the following definitions:
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 the societies 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 culture partners, social institutions and legal systems.
This historical continuity may consist of the following factors:
- occupation of ancestry lands, or at least of part of them;
- common ancestry with the original occupants of these lands;
- culture in general, or in specific manifestations (such as religion, living under tribal system, membership of an indigenous community, dress means of livelihood, life-style, etc.);
- language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main, preferred habitual, general or normal language);
- residence in certain parts of the country, or certain regions of the world;
- other relevant factors.34
This definition is defective in that it is restricted to indigenous peoples in countries subjected to European colonisation and excludes indigenous peoples in non-colonised countries.
An alternative definition of indigenous peoples was adopted in the International Labour Organization (ILO) No.169 (Convention Concerning the Indigenous and Tribal Peoples in Independent Countries):
1. This Convention applies to:
(a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;
(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.35
This definition is better as it applies to all peoples in both colonised and independent countries. The definition also emphasises indigenous social, economic, cultural and political obligations regardless of state boundaries. On the other hand, this definition is frequently criticised for giving priority to the histories of the Americas, New Zealand and Australia, and ignoring the African and Asian historical realities.36
The World Bank has taken up the definition of indigenous peoples in Operational Directive 4.20, which states that:
The terms ‘indigenous peoples’, ‘indigenous ethnic minorities’, ‘tribal groups’, and ‘scheduled tribes’ describe social groups with a social and cultural identity distinct from the dominant society that make them vulnerable to being disadvantaged in the development process. For the purposes of this directive, ‘indigenous peoples’ is the term that will be used to refer to these groups. …
Indigenous peoples are commonly among the poorest segments of a population. They engage in economic activities that range from shifting agriculture in or near forests to wage labour or even small-scale market-oriented activities. Indigenous peoples can be identified in particular geographical areas by the presence in varying degrees of the following characteristics:
a. a close attachment to ancestral territories and to the natural resources in these areas; b. self-identification and identification by others as members of a distinct cultural group;
c. an indigenous language, often different from the national language;
d. presence of customary social and political institutions; and
e primary subsistence-oriented production.37
The World Bank definition is specific in economic function. The emphasis on natural resources and primarily subsistence-oriented production are the distinguishing feature of this.
The United Nations Draft Declaration on the Rights of Indigenous Peoples states in Article 29 that:
Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.38
The United Nations Declaration on the Rights of Indigenous Peoples was adoptedby the General Assembly on June 29, 2006,39 the definition of indigenous peoples is not explicitly defined in this context.
34. United Nations Doc. E/CN.4/Sub.2/1986/7/Add.4, paras. 397-380. See also Stoll and Hahn, above n 25, 9.
35. International Labour Organization Convention (ILO) No. 169 Article 1, para. 1, adopted by the General Conference of the International Labour Organization, Geneva, June 27, 1989. Entered into force September 5, 1991. See also Stoll and Hahn, above n 25, 10. See also Anaya, above n 27, 64 and 303.
36. Micheal Halewood, ‘Indigenous and Local Knowledge in International Law: A Preface to Sui Generis International Property Protection’ (1999) 44 McGill Law Journal 953, 957.
37. World Bank Operational Directive 4.20. See also Stoll and Hahn, above n 25, 10.
38. Report of the working group on indigenous populations on its eleventh session (Chairperson-Rapporteur: Ms. Erica-Irene A. Daes), Draft United Nations Declaration on the Rights of Indigenous Peoples, UN ESCOR, E/CN.4/Sub.2/1993/29/Annex I, (23 August 1993) available at <http://www.cwis.org/fwdp/drft9329.html> at 15 January 2007.
39. This Declaration was drafted by the Working Group on Indigenous Populations, established by ECOSOC Resolution 1982/34. Finally, the United Nations Declaration on the Rights of Indigenous Peoples was adopted by the General Assembly resolution 2006/2 of 29 June 2006. (Adopted by a recorded vote of 30 votes to 2, with 12 abstentions). See Office of the United Nations High Commissioner for Human Rights (2006) <http://www.ohchr.org/english/issues/indigenous/groups/groups-02.htm> at 26 January 2007.
This article is published with the kind permission of Panumas Kudngaongarm, Professor, Ph.D. Candidate, School of Law, the University of New England, Australia. (Lecturer, School of Law, Sukhothai Thammathirat Open University, Thailand.). This article was presented at the Inaugural Conference of the Asian Society of International law: International Law in Asia-Past, Present and Future.