Tomorrow is another date!

Thanks to Prof Graham Dutfield we became aware of yet another date for your diary. Tomorrow the University of Leeds is holding the British Association of Canadian Studies. This time the University will have a round table of its Aboriginal Studies Circle covering different disciplines. Key speakers are: Prof Joy Hendry (Anthropology, Oxford Brookes University); Dr Colin Samson (Sociology, University of Essex); David Stirrup (Literature, University of Kent); and Dr Roy Tood (Sociology, University of Leeds). While too many cooks spoil the broth (soup) there is no doubt that the ‘Contemporary Development in Aboriginal Issues’ (as the colloquium is called) needs different types of spoons. Indeed, as you have noticed from our set of posts while tktotem covers only legal issues, we always need to touch other areas such as sociology, politics, and education and so on and so forth.

Hope you can make it and if you do, please give some feedback to us and we will be happy to post it here.

Full information can be found at this link.

The Aboriginal Embassy, Protests, Rights and the Constitutional Referendum

Sarah’s post about the protests in Australia around Australia Day – a day which several Aboriginal leaders refer to as “Invasion Day” – brings forth the issue of the relationship between indigenous peoples and settler societies. If, on the one hand, countries like New Zealand, Canada and the US have treaties whereby the indigenous peoples “ceded” their lands (the validity of that consent is the subject of much controversy), most countries in Latin America and Australia (as well as, to the best of my knowledge, Scandinavian countries) do not have such formal arrangements, and have attempted to establish their rapport with indigenous peoples in a more organic way as of late. Sure, followed by centuries of invasion, decimation and oppression, but now seemingly willing to genuinely achieve positive balance in indigenous peoples – settler societies relations in a non-assimilationist fashion.

But not all is this clear-cut, of course. Perhaps because Australia is the one English-speaking country where there are no Treaties, Aboriginal peoples have – and rightly so, I believe – chosen to treat the settler society as a guest in their country, or to see themselves as not Australians (to the extent “Australians” are the descendants of European colonizers). Hence the embassy, which has been around for 40 years. But a lot of this might change, should the referendum to amend the Constitution pass. Sure, Tony Abbott’s – the opposition leader in Australia – remarks were unfortunate, to say the very least, but there might be something to them. If the Australian Constitution aptly recognizes Aboriginal and Torres Strait Islander peoples, then what role is there for an embassy, at least bearing the name of “Embassy”? Of course, the Aboriginal cause will not have achieved every single one of its goals with the mere passage of a constitutional amendment, but the core objective of its cause will need to be fundamentally reshaped, and it might be time to start considering that, while at the same time keeping putting on pressure for referendum.

Patrick Dodson’s (one of the members of the Expert Panel that produced the report released last week) op-ed piece published today (here) is a reminder of what is really at stake, and how one should not be detracted by the single violent incident of an otherwise remarkably peaceful and lasting protest – the Aboriginal Embassy.

Written by Lucas Lixinski

The Corroboree for Sovereignty, the Treaty of Waitangi and Unresolved Questions in International Law

There has been a great deal in the news about Australia Day—26 January—and the protests by the Aboriginal Peoples. In the swirl of these events, other long-standing protests have been overlooked. These other groups of protestors raise claims about sovereignty, the need for treaties, and for re-examining the relationship between the Aboriginals and the government. It is true as well that there is a proposed change to the Australian Constitution, which has been discussed in the blog post by Lucas, but it does not address the deep-seated and persistent issues that are raised by these other protests.

This article here from the Canberra Times notes two other protests, the Corroboree for Sovereignty and a 40 year long tent embassy:

“The three-day Corroboree for Sovereignty, which will run until tomorrow, is being timed to coincide with the 40th anniversary of the Aboriginal tent embassy's establishment in Canberra.”

More information on the Tent Embassy and the Corroboree for Sovereignty can be found at this link. One of the issues put forward is the demand for a treaty between the Australian government and the Aboriginal Peoples. Australia stands in contrast to its near-ish neighbour, New Zealand, in respect of how the relationship between the indigenous peoples and European colonisers was shaped. Australia saw the development of the doctrine of terra nullius, translating literally to “empty land.” In other words, the land was treated as if no one was there—at least no one that the colonisers wanted to or felt obliged to acknowledge. New Zealand, on the other hand, has the Treaty of Waitangi (here is a link to information on the treaty) that governs the relationships between the indigenous peoples of New Zealand and the government. The Treaty is recognised and in effect today. In 1975, an Act was passed that established the Waitangi Tribunal ( link to legislation here).

As explained on the Tribunal’s website, http://www.waitangi-tribunal.govt.nz/, “The Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Maori relating to acts or omissions of the Crown that breach the promises made in the Treaty of Waitangi.” In respect of claims made to the Tribunal, it “ has to decide whether, on the balance of probabilities, that claim is well founded. Where the Tribunal finds that such is the case, it may recommend to the Crown means by which the Crown can compensate the claimants, remove the prejudice, or prevent similar prejudice happening to others in the future.”

This is an important mechanism for the recognition and enforcement of Treaty rights—something that is unique in the landscape of treaty rights, sovereignty claims and relationships between indigenous peoples and governments. The UN Declaration on the Rights of Indigenous Peoples provides for the recognition of treaties in Article 37,

“Article 37
1. Indigenous peoples have the right to the recognition, observance
and enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other constructive
arrangements.
2. Nothing in this Declaration may be interpreted as diminishing
or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.”

But the article and the Declaration are silent on how and where these treaties are to be enforced. Are these a matter of international or domestic jurisdiction? And where are indigenous peoples to go with claims of sovereignty—such as those raised by the Corroboree for Sovereignty—and demands for treaties where none currently exist? If the state is unwilling or its responses deemed inadequate, are there grounds for some sort of international claim? And if so, on what basis and where? These and many other questions rise to the fore when considering the claims of the Corroboree for Sovereignty, and the contrasts with treaty arrangements in New Zealand. Whilst many gains have been made in international law for the recognition of the rights of indigenous peoples, many other questions remain unresolved and unanswered.

Written by Sarah Sargent.

Do Genes Matter?

Sarah’s last blog (here) on bioethics, medical research and indigenous peoples raises a number of interesting points. As a relatively new blogger it allows me to discuss an area I am familiar with. My research concerns the restitution of ancient indigenous human remains, ancient indigenous DNA and property rights. What you may ask has this got to do with medical research and bioethics.

The collecting of indigenous human remains in the past has been compared with the new interest in the genes of indigenous peoples. Indigenous peoples are particularly vulnerable to bio-prospecting and in turn bio-piracy. In many cases although not in all, indigenous peoples have remained geographically and socially isolated and therefore are particularly interesting for scientists interested in genetic information. There are a number of examples and Sarah mentions the Havasupai Tribe case where genetic material or blood samples in the case of the Havasupai Tribe were used in a way that was ‘culturally inappropriate’ in the indigenous sense but may have been ‘culturally appropriate’ for the researchers. Sometimes consent has been given but the implications of that consent have not been fully explained to the indigenous group giving consent.

The following statement concerns the collection of the genes of the living by the Human Genome Project a project set up in 1990. The statement although made in 1994 still resonates today.

‘The issue relating to the Human Genome Project and others relating to our genes, is a serious violation of our peoples’ rights. Without consultation with the indigenous communities, several projects are now taking blood, hair, tissue and other samples for purposes that are not clear. The practice of collecting samples without our approval is very dangerous because in this way our genetic material can be patented or used for other purposes. Such practices not only violate ethics and human rights, but also violate nature, our spirituality and our knowledge of creation that connects us with all forms of life.’

Geneva Intellectual Property Rights Workshop, August 1994

Over the coming weeks I will draw out the rights and human rights implications of this debate; such rights as non-discrimination, Free, Prior, Informed Consent (FPIC), consultation, participation, benefit-sharing and a right to culture. This discussion has wider ramifications and can be applied to other indigenous ‘resources’ as it seems to me indigenous genes are viewed through a proprietary prism and sit alongside other vulnerable resources such as land, minerals, water and indigenous traditional knowledge (TK) to name but a few.

Written by Fiona Batt.

Australia: Improving Aboriginal School Attendance

Northern Territories: The town of Gunbalanya has schools trialling a new system of school terms to help improve their students’ attendance rates. The reality of Aboriginal Student attendance sees barely over 50 percent of Aboriginal Students attend schools over the last two years.

Traditionally attendance is high at the start and end of the school year. This is due to the heavy rainfall which prevents students travelling. The low attendance rates coincide with the dry season during which the students are undertaking cultural activities and meeting families and elders. The government is taking this into consideration and has decided to trial starting school three weeks earlier in the Aboriginal Community of Arnhem Land. The students will instead receive holiday during the dry season when they can use the time to attend the cultural events.

The move by the government is to be welcomed. By providing a school year which is sensitive to the deep seated cultural traditions of the Aboriginal Students this will help improve the possibility of greater attendance rates. Whilst simply changing the school year alone is not enough to help improve achievement rates, it is one of a number of steps which should be welcomed and embraced as an improvement to the serious situation of failing academic achievement by a large number of Aboriginal students. Spectators can only be hopeful that this trial improves attendance from the pitifully poor rate and helps to improve prospects for the Community and next generation of Arnhem’s young people.

Source ABC.

Written by James Roffee

Bioethics, Medical Research and Indigenous Rights

I have been reading a book by Rebecca Skloot, “The Immortal Life of Henrietta Lacks”.

This book traces the story of Henrietta Lacks, her family, and the cells that were taken from her when she was ill and then used in medical research. The book raises important questions about the ownership of DNA and cells, of medical research ethics in human subjects research, and informed consent. The book is riveting, well-written, and disturbing and inspirational at the same time.

Henrietta Lacks was African-American. But the bioethics questions raised about her own situation certainly resonate with bioethics questions and indigenous peoples. This is the first in a series of blog posts that will explore and address the issue of bioethics and indigenous rights.

The book, in a timeline appended at the back, mentions a lawsuit of the Havasupai tribe in 2005 raising bioethics issues not dissimilar from those raised about the cells taken from Henrietta Lacks.

A New York Times article from 2010 comments on the settlement that was reached, with “pay[ment] $700,000 to 41 of the tribe’s members, return the blood samples and provide other forms of assistance to the impoverished Havasupai — a settlement that legal experts said was significant because it implied that the rights of research subjects can be violated when they are not fully informed about how their DNA might be used.”

The problems and issues raised about bioethics and bio-prospecting and the rights of indigenous peoples remain important and unresolved issues. This 2011 article from NATURE outlines an issue involved in genome sequencing of the indigenous peoples of Australia, and further comments on the issues when human material is held in museum collections “The study also raises broader consent issues over body parts of indigenous people held in museums, says Kowal. Many collections are returning bones to these groups, but the British Museum in London, for instance, generally excludes hair and nails from its repatriation policy. Such specimens are a valuable tool for studying the genomes of people from around the world, including populations that no longer exist, argues Willerslev.”

Medical interests include not only the benefits to medical science, but of the profits that can be made from patents of human genetic material. This article gives a helpful summary of the various interests at stake and explains the role that international law has to play in an issue that combines medical and research ethics and laws and human rights:

“Beyond ethics, indigenous populations and human rights activists have found support in emerging international human rights jurisprudence on the need to protect indigenous peoples from racial discrimination and the emerging imperative of safeguarding indigenous peoples’ knowledge. For example, article 8(j) of the Convention on Biological Diversity obliges states to “respect, preserve and maintain knowledge, innovation and practices of indigenous communities and promote their wider application with the approval and involvement of the holders of such knowledge.”

What are the current legal standards? What safeguards are put in place by researchers to ensure that the standards of informed consent as well as ownership and potential profits are met? What developing standards have occurred through litigation? These are questions that future posts on this blog will address.

Written by Sarah Sargent.

Just Say No: Obama rejects the permit for the Tar Sands Pipeline and hearing on the Haskell Wetlands

On 19 January, President Obama of the United States rejected a permit that was needed for the construction of the proposed Keystone XL pipeline, also known as the tar sands pipeline. Considerable environmental concerns as well as health concerns had been raised in opposition to the creation of the pipeline, and were the subject of some earlier blog postings here. There have been a large number of indigenous groups arguing against the construction of the pipeline, including the Mother Earth Accord (at this link, and calls to support the Mother Earth Accord by such groups as the Indigenous Alliance without Borders (information about their support of the Mother Earth Accord at this link)).

The mainstream press is filled with arguments for and against the Obama decision. Some argue that the Obama decision has destroyed the possibility of jobs and cheaply available energy with this decision; others argue that the claims of jobs and cheaply available energy were mere chimera—without basis in fact.

An article is carried on the website of Indian Country today (here) that has the reactions of politicians and indigenous leaders about the Obama decision. At this link

One of the concerns raised by the Mother Earth Accord was whether appropriate “free, prior and informed consent” had been obtained from those indigenous peoples whose land and lives would be impacted by the construction of the pipeline. The standard of free, prior and informed consent is found in the UN Declaration on the Rights of Indigenous Peoples, at Article 19 and Article 32.

There is another important event today, and that is the oral arguments scheduled in the United States Tenth Court of Appeal on the Haskell Wetlands in Lawrence, Kansas, USA, which have been the subject of prior posts on this blog. (here and here)

The UNDRIP principles are just as important to the Wetlands as they are to the lands under threat by the tar sands pipeline construction,

And Article 27 seems especially applicable to the Wetlands situation:

“ States shall establish and implement, in conjunction with indigenous
peoples concerned, a fair, independent, impartial, open and
transparent process, giving due recognition to indigenous peoples’
laws, traditions, customs and land tenure systems, to recognize and
adjudicate the rights of indigenous peoples pertaining to their lands,
territories and resources, including those which were traditionally
owned or otherwise occupied or used. Indigenous peoples shall have
the right to participate in this process.”

The unique history of the Wetlands as adjacent to the Haskell boarding school, now a four year university, certainly fit within the ambit of Article 27—and the occupation and use of these Wetlands must be respected under the spirit and the letter of the UNDRIP.

Some good news today with the Obama rejection of the pipeline, at least for now, and hopes that similar protections and respect can be granted by the Tenth Circuit District Court to the sacred space of the Wetlands.

Written by Sarah Sargent.

News on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in Australia

Yesterday, January 20 [yes! it was yesterday in Australia], the Expert Panel appointed to investigate the possibility of a constitutional amendment to the Australian Constitution Act published its report (available here). In it, the Expert Panel, composed of constitutional and international lawyers, aboriginal leaders, members of Parliament and Australian human rights authorities, recommend changes to the Constitution in order to exclude (or at least modify) the powers of the federation to legislate on race matters, and a formal recognition of the role of Aboriginal and Torres Strait Islander peoples in the making of the Australian nation. The panel drew on a wide range of experiences in comparative and international law to back up its proposals.

In an opinion piece published in a prominent Australian newspaper earlier this week, George Williams, a leading constitutional law scholar in Australia, said that “[t] he starting point for political parties is that the constitution should respect the place of indigenous people in society. It should recognise their long occupation of this continent and their continuing relationship with traditional lands and waters”, and expressed hopes that a referendum would actually be won on this matter (Australia has a bleak record of successful attempts at constitutional amendments).[Read the full piece here].

We should keep our eyes open as to what happens in Australia, a country that has only reluctantly accepted the UN Declaration on the Rights of Indigenous Peoples, and that has struggled to offer recognition and protection to its indigenous populations.

Written by Lucas Lixinski.

Setting an Example: Nordic Countries and the Sami Peoples

In light of the event publicized early on by Alexandra Xanthaki - meeting hosted at Brunel Law School,UK the Expert Workshop on Indigenous Languages and Culture, it might be timely to consider that indigenous peoples also are part of Europe. The popular image of indigenous peoples might place them far away in New World countries and continents, but as the 6 June 2011 report by Special Rapporteur on the Rights of Indigenous Peoples, James Anaya points out, indigenous rights are also a European issue.

On 6 June, Mr Anaya submitted a report in his role as the Special Rapporteur on “The situation of the Sami people in the Sapmi region of Norway, Sweden and Finland.” (available at this link here) gives some encouraging and positive news in a field that is often bleak in terms of how states are responding to international and regional imperatives on indigenous rights. Anaya’s summary comments that “The Special Rapporteur is pleased that, overall, Norway, Sweden, and Finland each pay a high level of attention to indigenous issues, relative to other countries. In many respects, initiatives related to the Sami people in the Nordic countries set important examples for securing the rights of indigenous peoples.”

This perhaps does not come as a surprise to those who are familiar with the reputation of these states on human rights issues in general. It is heartening to hear that some states are making commendable and positively meaningful steps in the implementation of rights for indigenous peoples.

Whilst Anaya’s report does outline recommendations for areas where continued gains should continue to be made, it is clear that the states involved are making important strides in the realisation of rights for the Sami peoples.

He remarks that “Today, Sami people in the Nordic countries do not have to deal with many of the socio-economic concerns that commonly face indigenous peoples throughout the world, such as serious health concerns, extreme poverty or hunger. Norway, Sweden and Finland are among the wealthiest and most developed countries in the world and consistently rank toward the top of human development indicators. Nordic countries are thus well-positioned to tackle outstanding concerns related to the Sami people and to set examples for the advancement of the rights of indigenous peoples.”

This is well and good. It should also serve as a wake up call and a challenge for other developed and wealthy states with indigenous peoples There, indigenous peoples often face circumstances of low life expectancy, high birth rate mortality, high occurrences of preventable diseases, and low income whilst surrounded by prosperity and health indicators that stand in stark contrast to those of the indigenous peoples.

Awareness of the Sami peoples as indigenous peoples in Europe, and the achievements that have been made towards rights realisation is important as an example of what is achievable in the realm of indigenous rights.

Save the date!

A goody bag comes in your way! It is full of different topics that cover indigenous peoples. From language to land and from human rights to traditional knowledge we will be able to see all these topics under one roof.

Here is what Dr Alexandra Xanthaki says:

Brunel Law School in collaboration with the UN Expert Mechanism on Indigenous Issues is organising an Expert Workshop on Indigenous Languages and Cultures at Brunel University on the 8th-9th March 2012. The Workshop aims to contribute to the Annual Report of the Expert Mechanism, which will be on this same topic.

The themes that will be discussed in the conference include:

* An overview of indigenous peoples’ right to culture under international human rights law
* Indigenous peoples’ rights to language
* Indigenous peoples’ cultural self-determination and autonomy
* Indigenous peoples’ right to culture and lands, territories and resources, including reparations
* Custom, human rights and justified limitations
* Indigenous peoples’ traditional knowledge and traditional cultural expressions
* Indigenous intellectual property rights
* indigenous identities and spirituality

Speakers include:

Elsa Stamatopoulou (Former Chief of the Secretariat of Permanent Forum on Indigenous Issues)
Prof. Julian Burger (Former Chief of UN Minority and Indigenous Unit, currently Essex University)
Prof. Siegfried Wiessner (St Thomas Law School, US)
Prof. Rene Kuppe (University of Wien)
Dr Federico Lenzerini (Sienna University)
Prof. Samson (Essex University)
Prof. Paul Havenmann (Institute of Commonwealth Studies, University of London)
Dr. Robert Dunbar (University of Aberdeen)
Dr. Damien Short (Institute of Commonwealth Studies, University of London)
Prof. Joshua Castellino (Head of Department, Middlesex University)
Dr. Marilena Alivizatou (UCL)
Prof. Sonia Harris-Short (University of Birmingham)
Dr. Susan Aikmann (University of East Anglia)
Prof. Graham Dutfield (University of Leeds)
Dr Ghanea-Hercock (Oxford)
Prof. Marie-Benedicte Denbour (University of Sussex)
Dr. Kristin Hausler (British Institute of International and Comparative Law)

Definitely, the team that was put together is of some notoriety in the area of Indigenous Peoples and hopefully you can be there –it’s a date!

not this type of date!

Anyone interested to attend can email Dr Alexandra Xanthaki at alexandra.xanthaki@brunel.ac.uk.

Brazilian High Court on Indigeneity and the Role of the State in Mediating Indigenous Relations to Settler Society

A few days ago, the Brazilian High Court (Superior Tribunal de Justiça or STJ) issued a judgment determining that indigenous persons must always be represented by the National Indigenous Peoples Foundation (Fundação Nacional do Índio or FUNAI) in court proceedings.

In this case, an indigenous person of the kokama people, based on the border between Brazil and Colombia, was arrested in Manaus (capital of the Amazonas state in Brazil, the largest city in the Amazon rainforest area) in possession of cocaine. FUNAI applied to the local court for the status of third party intervening on behalf of the indigenous person, but its request was denied, on the grounds that the indigenous person, by possessing a wide array of civilian and military personal documents (such as a taxpayer’s code, military draft registration, and voter’s card), showed that he was sufficiently integrated in society, therefore not requiring representation by FUNAI.

The Brazilian High Court disagreed, saying that, since the 1988 Constitution, rules on civilian capacity of an indigenous person are irrelevant, and that it is the duty of the State to represent indigenous peoples and assist indigenous individuals before the judicial system. The judge who wrote the Court’s opinion said that there is a presumption of indigeneity, and that the first instance judge erred by not taking into account the fact that the person identified himself primarily as indigenous, despite all his documents showing he was integrated in society.

The first instance court in this case seems to work from an indigenous / non-indigenous dichotomy that suggests that a person will only be considered indigenous if it is not at all in contact with settler society, or takes any part in the settler polity. Or at least this seems to be the understanding of the first instance court, by using an outrageously antiquated rule on civilian capacity in Brazilian law, which deems indigenous peoples to have the same legal capacity as a five-year old. In all fairness to the Brazilian legislator, the 2002 Civil Code attempted to correct this: while the 1916 Civil Code plainly said that indigenous persons had no capacity whatsoever, the 2002 Code simply determines that indigenous capacity will be determined by special legislation. But then the special legislation in question is the “Indian Rights Act”, an incredibly assimilationist piece of legislation dating back to 1973, which, when regulating capacity, simply repeats the rules of the 1916 Civil Code. A new statute on the rights of indigenous peoples is currently under discussion by the Brazilian Congress, but the 1973 act is still good law until then. Unless, of course, the law was to be applied in light of the 1988 Constitution, which grants some form of recognition to indigenous peoples, and tries to move away from the assimilationist tone of the 1973 statute. But then the implementation of the 1988 Constitution still happens through the 1973 act, which makes the prevailing tone still one that is rather assimilationist, or at least paternalistic.
And then comes the High Court’s decision, which agrees with FUNAI in that they should be representing the indigenous person, because no degree of “integration into the national communion” (language of the 1973 act) can deprive a person of their indigenous identity.

So far, so good, except that the tendency is to translate a duty of assistance that should come only so as to correct informational, cultural and power imbalances between indigenous peoples and settler society into a paternalistic take of indigenous people as those poor little individuals who could not possibly take full responsibility for their actions. While attempting to combat the exclusion of indigenous individuals, this attitude disenfranchises them, victimizes indigenous persons and strips them of the agency the law should be guaranteeing them.

While the High Court’s decision is a welcome step in securing the achievements of indigenous peoples in Brazil, it also shows there is still a long way to go, as far as the law is concerned, in order to put indigenous peoples in their rightful place as full participants of society, as opposed to marginalized beings who need coddling by a State operating under still alarmingly assimilationist rules and impulses.

Source STJ.

Some of the Brazilian Legislation can be found here.

Written by Lucas Lixinski.

Not just a blogger!

Dr Sarah Sargent not only should be known as another blogger in the issue of indigenous rights. She is also fully committed to active research in this area. This month we see the publication of one of her studies titled: “Transnational networks and United Nations human rights structural change: the future of indigenous and minority rights”, published by the International Journal of Human Rights 16.1 (2012).

Here is what it is said about it:

This article examines the reasons behind the differing United Nations structural provisions for minority and indigenous rights. There is overlapping membership between these two structures, yet the indigenous rights regime is seen as very robust and effective compared to that of the minority rights regime. The article proposes a model to explain the difference based upon the effect of transnational advocacy network campaign pressure upon the UN structures. It make use of intersections of international law and international relations theory (which is very much a developing trend in international law research) to explore this.

Well done Sarah! 

More on the Tar Sands Project and Implications for Indigenous Rights and Well-Being

The controversy over the tar sands extraction and planned pipeline is featured in an article in the current edition of the International Journal on Human Rights. The article, by Jennifer Huseman and Damien Short, “A slow industrial genocide’: tar sands and the indigenous peoples of northern Alberta” examines the effects of environmental pollution on the indigenous peoples near the tar sands project. This article is important in pointing out the severe effects the tar sands project has on indigenous communities and their health.

This concern was of course outlined in the Mother Earth Accord (and which is evidence of the well-organised indigeneous activism on this and other issues) which was briefly discussed in an earlier post on this blog. The Mother Earth Accord document itself calls attention to the health problems that nearby indigenous communities have which have been “potentially linked to petroleum products”: “The Assembly of First Nations of Canada called on the United States government to take into account the environmental impacts of tar sands production on First Nations in its energy policy, citing the high rates of cancer in the downstream Fort Chipewyan community, which prominent scientists say are potentially linked to petroleum products;”

Concern about the tar sands project is not new. This link here details activity that has been ongoing to raise concerns and protest the tar sands project effects on indigenous peoples in Canada. See also this link here which raises issues about the violation of Treaty 8 in the tar sands project.

Treaty 8 is a treaty that was entered into between indigenous peoples in Canada and Queen Victoria of England. It set aside certain portions of land for the use and occupation of indigenous peoples and is one of a series of numbered treaties involving the indigenous peoples of Canada. (Click here for more information on Treaty 8)

The tar sands issue is one that has many complex and issues with both immediate and far-reaching consequences. There are short and long term environmental and health effects. There are further issues about what recognition will be given to the principle of free, prior and informed consent that is raised in the Mother Earth Accord, and is enshrined in the UN Declaration on the Rights of Indigenous Peoples. It might be tempting to think that the land-taking and disregard for not only the cultural integrity but the simple health and well-being of indigenous peoples is a thing of the past. But the tar sands issue shows that these are very much issues of the present day.

The responses of Canada and the United States, who both originally opposed the adoption of the UNDRIP, in particular to the claims raised about free, prior and informed consent, may be very telling as to how the rights in the UNDRIP will be received or resisted in these two countries.

Written by Sarah Sargent.

Protecting traditional knowledge and culture: Colombia gives an example

The protection of traditional knowledge is seen this time by way of Intellectual Property law: collective marks and Geographical Indication (GI). The news that I bring you today relates to the legal recognition (granted by the Colombia Superintendence of Industry and Commerce (SIC)) and thus protection of some of the most recognised products in Colombia which have aboriginal origin. The legal certification granted to the products would give the makers the possibility of defending their product against piracy and initiate legal proceedings that arise when another trader makes a copy or takes advantage of the reputation of their products on the market.

Both legal figures relate to the follow:
Collective marks as any other trade mark distinguish the goods/services from those of others. It signifies membership of a particular group; it does not have anything to do with quality but just identifying a particular association and thus designating who can use the mark.

Geographical indications are policies designated to highlight a link between the natural geographical advantages or the reputation associated with a place and the products produced in that place. There is however no definition of GI in the Paris Convention for the Protection of Industrial Property but the TRIPs Agreement defined them as “indications which identify a good as originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the goods is essentially attributable to its geographic origin” (art 22(1)). Note that according to TRIPs this measure applies to ‘all’ products. There is also the Lisbon Agreement and the Madrid Agreement -- the latter protects GIs at international level.

It is good to bear in mind that all these treaties exhibit different approaches but with a key point – to protect a product from passing off, in other words where one trader sells goods/services in the appearance of another trader’s goods/services. Another important point here is perhaps that many countries do not recognise handicraft as GIs but just foodstuff as the EU for example.

On December, Colombia saw the recognition of seven artisan products as a GIs (in the form of Denominations of Origin) and added to this, six associations were granted a collective mark also for artisan products. What caught my attention from these products was that all of them were born before the colonization and were made by different ethnic groups.
The base of the Colombian handicrafts is from natural products offered by this land and is at hand. For instance: clay, bamboo, leather, fibers, sisal, wool, wood, calabash, and precious metals. They do reflect the cultural expressions. Hammocks, pieces of gold, silver filigree, basketry, tapestry, ceramics, accessories in coconut or seeds, embroidery, sculptures, wooden objects and hand-woven items are an excellent showcase of Colombia to the world.

The products that received GI protection were:

• ‘ Mochilas Wayuú’: bags made by the Wayuu, a group of indigenous people who live in La Guajira Peninsula in northern Colombia. Each ‘mochila’ is hand-made by one woman and each woman has her own signature.
• ‘Tejeduría Zenú’ (weaving)
• ‘Hamacas de San Jacinto’ (hammock)
• ‘Sombrero Aguadeño’ (hat)
• 'Sombrero de Sandoná (hat)
• ‘Cerámica de Carmen de Víboral’ (ceramics)
• ‘Mopa Mopa Barniz-Pasto’: pasto varnish is a decorative technique developed by indigenous communities of Nariño in southern Colombia. Mopa-mopa is extracted from a plant that grows in the department of Putumayo in the Colombian jungle. The plant produces a gelatinous pulp, and through a traditional process of heating (previously there was the chewing and then the throwing in boiling water) is converted into a thin resin sheets- the artisan, with the help of his hands and even teeth ends to stretch; this then is tinted with vegetable dyes which will cover the surfaces of wooden objects.

Those that were registered as a collective marks were:

• ‘Sombrero Vueltiao’: hat resulting from weaving iraca palm fibres called ‘caña flecha’ that are native to Aguadas and has its origins in the Zenú Indian culture. This natural fibre is transformed into black and white fibers that are braided by a traditional Zenú technique—originally, it was only white, as the artisans had not discovered a painting technique until later on.
• ‘ Filigrana de Mompox’ (weaving gold jewellery)
• 'Tejeduría de Usiacurí’ (weaving)
• ‘Artesanías del Valle de Sibundoy’: handcrafted products in beads, wool, yarn, fiber, seeds, wood carving located in the Department of Putumayo (Colombia), home of lnga and Camentsá Indians.
• ‘ Mochilas Arhuacas’: bags made from wool of sheep by the Arhuaco Indians.
• ‘Werreregue de los Wounaan’:Wounaan Indians who produce basket and trays made of werreregue palm. Originally, the Waunana women manufactured werregue vases quite solid and compact so it could be used to carry water.

Source Bulletin Latinpymes.

Tar Sands Pipeline, the Mother Earth Accord and the United Nations Declaration on the Rights of Indigenous Peoples

To what extent are legal practitioners and law students in the area of energy law made aware of indigenous rights and how those impact upon energy law? Too often, it seems, legal education and practice treat indigenous legal matters as a discrete and exotic area of law that will not infiltrate into the mainstream practice of law. ( which will be a topic for a future blog post). But nothing could be further from the truth. The controversy over the Keystone XL pipeline, also referred to as the Tar Sands pipeline, shows just how prevalent indigenous rights and issues are in current energy law considerations.
The proposed pipeline would carry oil from Canada to Texas—carrying “tar sands crude oil.” In some quarters, this has been received with good news—it would provide additional resources for oil, easing concerns about shrinking oil availability. But there have been sharp protests to the proposed pipeline by effected indigenous communities. The “Mother Earth Accord” outlines the indigenous concerns about the environmental and health effects of the proposed pipeline. The Accord was presented to President Obama in December 2011. 

The Accord is an example of indigenous activism on legal issues. According to the Newspaper Rock , “The Accord was developed in September [2011] during a Rosebud Sioux tribal summit.” The Accord invokes rights given in the United Nations Declaration on the Rights of Indigenous Peoples to be consulted with and to consent to activities as set out in Article 32 of the UNDRIP.

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual
impact.

The Mother Earth accord states, in part, in reference to the UNDRIP:

“We insist on full consultation under the principles of “free, prior and informed consent,” from the United Nations Declaration on the Rights of Indigenous Peoples both in the United States and Canada”

National Geographic is carrying a news item that predicts likely cancellation of the tar sands project through not receiving approval from Obama.  This indicates a deadline of 21 February 2012 for the Obama decision.
This situation is notable for many reasons, not the least of which is the invocation of the UNDRIP in the legal issues about the tar sands pipeline—with the United States which of course was one of the four states to oppose the approval of the UNDRIP in the United Nations General Assembly. The United States has since indicated a change in its position on the UNDRIP. [See ths link here] 

The further developments on this situation bear watching, and updates will be posted to this blog from time to time.

Written by Sarah Sargent.

The Inca Route as heritage: keeping an eye on the prize

News recently came out that Argentina, Bolivia, Chile, Colombia, Ecuador and Peru are ready to submit their joint application for adding the Inca Route – Qhapaq Ñan – to the World Heritage List.

What is so special about it?

Well, for one, it is the most multinational nomination to ever be presented to UNESCO’s World Heritage Committee. Secondly, and most importantly, it is a testament to the achievements of the Inca civilization, which pre-dated European conquest in the Americas, and, even though they were ultimately defeated by the Spaniards, mainly via warfare and disease-spreading , their culture still finds resonance amongst indigenous peoples in these countries.

The nomination, with the assistance of UNESCO, is being prepared for some 10 years and is now about to see the light of day. The Qhapaq Ñan is likely to be nominated as a cultural landscape, due to the connections between nature and man-made elements throughout its six thousand kilometres. A cultural route such as Qhapaq Ñan (a prominent European example being the Camino de Santiago de Compostela) is but a succession of landscapes, and, there lacking a specific category for cultural routes in the World Heritage List, it is appropriate that it be nominated as a cultural landscape.

Another reason why it is appropriate that it be nominated as a cultural landscape is that this category is the one through which intangible cultural heritage elements seep most strongly into the World Heritage System. Given the surviving connections between the Qhapaq Ñan and indigenous peoples in these countries, it is important that the living culture (that is, the intangible) aspects of this heritage also be acknowledged, even if it is very unlikely that communities along the route will have much of a say in the nomination process, let alone the actual management of the route.

It is cause for concern that communities be excluded from international heritage processes, seen as they are the ones who will most likely be impacted by the elevation of their heritage to “international status”, and the ones to whom any economic benefits arising from the exploitation of this heritage should return. But the World Heritage system is not the only one to exclude communities – all UNESCO regimes for the protection of heritage do so. One exception on paper is the system of the Convention for the Safeguarding of the Intangible Cultural Heritage (2003), which has language on community involvement, and even specific programs for that purpose now in its implementation phase. However, these are little more than lip service as they stand, seen as communities are not given a voice directly before UNESCO, only at the national level, which means states are the only ones who still get to speak before the international community about heritage and its importance, getting to ultimately decide what heritage is for international safeguarding purposes.

While an overhaul of the UNESCO system, while much desired, would be unlikely to come before the Qhapaq Ñan is added to the World Heritage List, it is essential that communities, national authorities and (most importantly for the purposes of inscription on the List and subsequent management) UNESCO and the international community keep their eyes set on what really matters: that the living heritage of the Incan Route be preserved and enhanced, and not replaced by a folklorized version of the Inca culture that caters to European tourists, or that favors the monumentality of the route as opposed to the rich multiplicity of the many small nuances and textures of the cultural fabrics that compose this amazing route, and make it a true testament to mankind.

Written by Lucas Lixinski.



Sacred Spaces: Litigation and Access to Justice

The Wetlands in Lawrence, Kansas, USA are not the only indigenous sacred spaces subject to litigation. In Australia, there is on-going litigation to prevent mining which is said to put many sacred sites at risk.

The article Aboriginal Group Challenges Mining Project published here contains comments from Professor Jon Altman who points out the disparity in power and resources that indigenous peoples face when it comes to litigation with large corporate interests.

This points out a very real dilemma for indigenous peoples. Access to courts can be expensive, and as the Wetlands litigation points out might conceivably go on for years. It is well and good to have laws on the books—even the “soft law” of the United Nations Declaration on the Rights of Indigenous Peoples. But those laws—as discussed in my earlier posts about the Indian Child Welfare Act-- are rendered meaningless in reality where there is no implementation or compliance with them, or when the protections that they offer are difficult to reach. But the concerns about indigenous rights is more than a point about barriers to reaching the laws or faulty implementation of laws on the books. As a report from Amnesty International (at this link) points out “Indigenous human rights defenders who speak out face intimidation and violence, often with the collaboration of the state.”

Any discussion or contemplation of indigenous rights and the exercise and access to those rights must keep in mind that the claiming and utilisation of rights is far more than an academic exercise. It is a real problem that confronts people in their every day lives. At times it seems that the academic study of indigenous rights runs the risk of being a “fad”-- the topic de jure with much ivory tower theorising—which will fade when the next major international instrument is passed. Any discussion of indigenous rights must keep in mind that there is a very human element to the discussion and that should not be forgotten.

There are many studies done that focus on the practical and real problems indigenous peoples face in accessing and exercising rights. Rachel Sieder and Maria Teresa Sierra have a paper on “Indigenous Women’s Access to Justice in Latin America”, which can be accessed at this link. The International Labour Organisation has a publication from 2009, “Indigenous and Tribal Peoples’ Rights In Practice”, which focuses on ILO Convention 169, and can be accessed at this link.

Written by Sarah Sargent.

Sacred Spaces Under Threat in Lawrence, Kansas: Part II

It is heartening to read in Patricia’s post that the Chilean government is returning land to its indigenous peoples. In addition to ILO Convention 169, the UN Declaration on the Rights of Indigenous Peoples also addresses the return of land in Articles 26, 27, and 28. In particular, Article 28(2) says:

“Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.”

The Chilean efforts would seem to be at least in the spirit of this article. But the government responses to the Wetlands, the sacred space in Lawrence, Kansas, are anything but. The litigation over the Wetlands and the proposed road has spanned more than a decade. The public and media attention on the on-going litigation seems very low. The case is “Prairie Band Pottawatomie Nation, et al., v. Federal Highway Administration, et al.” As the date approaches for the oral arguments, I will post any updates that I can find. In reading what I can find about public reaction to the case, many people feel that the taking of the Wetlands is justified because it would increase the convenience of their car commuting time around or through the town of Lawrence. The sacred space of the Wetlands, its meaning to indigenous peoples, what the loss of it would mean—none of this seems to strike a chord in apparently impatient car driving populace. And this is most disheartening—showing that attitudes of the settler society about the value of indigenous cultural heritage remain alarmingly dismissive. The legacy of destruction is active and carries on in the present day.

The 31st December 2011 Wall Street Journal, on page A13, carries a quote from G.K. Chesterton, from his 1929 book, “The Thing” that is very apt for viewing the Wetlands litigation and the positions taken that support the Wetlands destruction:

“There exists… a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I do not see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer, “If you do not see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it…”
Some person had a good reason for thinking (the gate or fence) would be a good thing for somebody. And until we know what the reason was, we cannot judge whether the reason was reasonable. … The truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, that they have since become bad purposes, or that they are purposes which are no longer served.
But if he simply stares at the thing as a senseless monstrosity that has sprung up in his path, it is he and not the traditionalist who is suffering from an illusion…”

Those who support the destruction of the Wetlands for the sake of a road (and there do exist alternate routes for the construction of such a road) seem to view the Wetlands and their meaning, history, cultural value and heritage as Chesterton’s “senseless monstrosity.”
Additionally, compliance with the UNDRIP would require that if the Wetlands are to be taken for the construction of a road, that alternate lands be granted equal in quality, size and legal status—much in the same way that lands are being returned to indigenous peoples in Chile.

Written by Sarah Sargent.