Q&As on Indigenous Peoples
- Please explain what means and tools (approach) should implement an MNE in the oil and gas sector in situations where the rights covered by the ILO Indigenous and Tribal Peoples Convention of 1989 (No. 169) are not protected by the State. For example, the failure of the government to comply with the following articles:
15.1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
14.1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
14.2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. - Just as the term “community” has a definition, I wonder what the real meaning of “tribal” is, and what characteristics must a group meet to be considered tribal.
15.1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
14.1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
14.2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.
Answer: The Committee of Experts on the Application of Conventions and Recommendations (CEACR) has explained, in practice, what it means the provision on request:
The Committee recalls that it has for years referred to the need to establish institutional mechanisms for consultation and participation.
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[The right of consultation] should be carried out in advance, it does not end with mere information, should be a genuine dialogue between the parties with the aim of reaching an agreement and it must be carried out in good faith, within a procedure in which the parties truest and that includes the representative authorities of indigenous peoples
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[The right of indigenous peoples] to be consulted whenever measures which may affect them directly flows directly from the Convention, whether or not it has been reflected in a specific national legislative text. The Commission considers that the establishment of effective mechanisms for consultation and contributes to preventing and resolving conflicts through dialogue and reduce social tensions. The Committee recalls that to establish this mechanism as well as to all particular query, it is essential that there is a climate of mutual trust. The Commission also stresses that the obligation to ensure that indigenous peoples be consulted in accordance with the convention rests with the Government (see General Observation, 2010). Also it emphasizes that the provisions of the convention on consultation should be read in conjunction with Article 7 [of the Indigenous and Tribal Peoples Convention of 1989 (C169)] in which the right of indigenous peoples to decide their own development priorities and participate in the formulation, implementation and evaluation of plans and programs which may affect them directly was enshrined.
This text comes from a case involving the construction of a cement plant and a mine in Guatemala.
In another observation on the construction of a hydroelectric plant in Brazil, the CEACR clarifies that "a simple briefing cannot be considered to comply with the provisions of the convention and affected communities should be involved even in the preparation of environmental impact studies. Likewise, indigenous peoples affected by the oil and gas extraction should be involved in discussions since the beginning of the project, including the development of impact studies.” See also “Understanding the Indigenous and Tribal People Convention, 1989 (No. 169)”. Although aimed primarily at governments, this tool incorporates certain information relevant to companies.
Question: Just as the term “community” has a definition, I wonder what the real meaning of “tribal” is, and what characteristics must a group meet to be considered tribal.
Answer: Article 1(a) of the Indigenous and Tribal Peoples Convention of 1989 (no. 169) states that the convention applies to "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".
The second paragraph of Article 1 adds that "Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply".
More information is available in“Understanding the Indigenous and Tribal People Convention, 1989 (No. 169)”.