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Definition & Legal Instruments

Definition

There is no single definition of indigenous peoples adopted at the international level. ILO Convention No. 169 provides subjective and objective criteria for identifying indigenous peoples. Self-identification is the sole subjective criteria, considered as fundamental, whereas the prescribed objective criteria are as follows:

  • Indigenous peoples:
    • Descend from populations who inhabited the country or geographical region at the time of conquest, colonization or establishment of present state boundaries;
    • Retain some or all of their own social, economic, cultural and political institutions, irrespective of their legal status.
  • Tribal peoples:
    • Their social, cultural and economic conditions distinguish them from other sections of the national community.
    • Their status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.

In the African context, the African Commission on Human and Peoples’ Rights (ACHPR) issued an advisory opinion in 2007 on the UN Declaration on the Rights of Indigenous Peoples. The ACHPR emphasized that indigenous peoples had a special attachment to and use of traditional lands and a state of subjugation, marginalization, dispossession, exclusion and discrimination due to their different culture, way of life and livelihoods. This opinion assigned comparatively less weight to the association of indigeneity with descent from the ‘first inhabitants’, because as the ACHPR stated, on these grounds and in the African context, most Africans consider themselves indigenous.

Free, Prior and Informed Consent (FPIC)

According to the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), free, prior and informed consent (FPIC) is a manifestation of indigenous peoples’ right to self-determine their political, social, economic and cultural priorities. It consists of three interrelated and cumulative rights of indigenous peoples:

  • The right to be consulted;
  • The right to participate; and
  • The right to their lands, territories and resources.

While States’ interpretations of FPIC vary, the right of indigenous peoples to be consulted is firmly established under international law. The UNDRIP states that governments should obtain the FPIC of indigenous peoples for development projects. Governments should also provide redress when indigenous cultural, intellectual property or genetic resources are taken without consent. Although ILO Convention No. 169 does not specifically contain the terminology of “free, prior and informed consent”, elements of consent requirements are present and do not preclude a substantive free, prior and informed consent-driven approach.

The Committee of Experts on the Application of Conventions and Recommendations (CEACR) has also stated that with regard to the right of consultation:

  • Consultations must be formal, full and exercised in good faith; there must be a genuine dialogue between Governments and indigenous and tribal peoples characterized by communication and understanding, mutual respect, good faith and the sincere wish to reach a common accord;
  • Appropriate procedural mechanisms have to be put in place at the national level and they have to be in a form appropriate to the circumstances;
  • Consultations have to be undertaken through indigenous and tribal peoples’ institutions; and
  • Consultations have to be undertaken with the objective of reaching agreement or consent to the proposed measures.

Legal Instruments

An ILO convention and a UN declaration form the international legal framework on indigenous peoples’ rights and are used by most countries that recognize indigenous peoples’ rights as guidance to their own national laws. These conventions outline rights specific to indigenous peoples and serve as a framework for indigenous and tribal empowerment.

To date, just over 20 countries have ratified ILO Convention No. 169. The Convention is legally binding upon the States that have ratified it and concrete steps need to be taken by them to ensure that their obligations under the Convention are effectively implemented at the national level. However, in many countries, there are still considerable challenges in terms of applying the Convention in law and practice, particularly regarding the right to consultation.

The UNDRIP, a non-binding instrument, is supported by most States and was adopted by the General Assembly in September 2007. The UNDRIP establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world. It elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples.

Other Legal Instruments

The UN Guiding Principles on Business and Human Rights (UNGPs) set the global standard regarding the responsibility of businesses to respect human rights in their operations and across their value chains. The Guiding Principles call upon States to consider a smart mix of measures — national and international, mandatory and voluntary — to foster business respect for human rights. Businesses should consider the UNGPs in their operational and supply chain decisions, and when following national legislation.

Regional and domestic legislation

Companies are increasingly subject to non-financial reporting requirements and due diligence obligations in the jurisdictions in which they operate, which often include disclosures on their performance. There are several high-profile examples of national legislation that specifically mandate human rights-related reporting and other positive legal duties, such as due diligence, including the United Kingdom Modern Slavery Act 2015, Australian Modern Slavery Act 2018, the California Transparency in Supply Chains Act 2010, the French Corporate Duty of Vigilance Law 2017, the German Act on Corporate Due Diligence Obligations in Supply Chains 2023 and the Norwegian Transparency Act 2022.

Also, in 2021 the Netherlands submitted a Bill for Responsible and Sustainable International Business Conduct, and the European Commission announced its Corporate Sustainability Due Diligence Directive (CSDDD). This Directive is likely to come into force between 2025 and 2027 and will make human rights and environmental due diligence mandatory for larger companies.

These mandatory due diligence and disclosure laws require companies to publicly communicate their efforts to address actual and potential human rights impacts, including violations in relation to freedom of association. Failure to comply with these obligations leads to real legal risk for companies.

The Canada-United States-Mexico- Agreement (CUSMA) entered into force in July 2020. It seeks to address 21st century trade issues and promote trade opportunities, by increasing engagement with Indigenous peoples in trade and investment to ensure their interests are reflected.

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