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Research Guide on Indigenous Peoples International Law [1]

 

By Christopher C. Dykes

 

Chris Dykes is currently a reference/research librarian at the University of Houston Law Center’s O’Quinn Law Library. He received his Juris-Doctor from the University of Baltimore School of Law and LL.M. in Taxation from Villanova University School of Law. He also holds a B.A. in Political Science and M.S. in Information Sciences from the University of Tennessee.

 

Published August 2009
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Table of Contents

 

Introduction

Indigenous Peoples

     Definition of “Indigenous Peoples”

     A Brief History

     Indigenous Populations

     Key Terms and Issues

Organizations

Documents

Secondary Sources

     Selected Books

     Periodical Indexes

     Selected Articles

Online Sources

Other Sources

Sources used for this Research Guide

 

Introduction

 

This research guide is designed to provide a foundation for researching indigenous international law by covering the definition of “indigenous peoples”, a brief history, key terms and issues, regional and international organizations including the United Nations, international documentation such as treaties, selected books and articles, online sources, and research guides.

 

Indigenous Peoples

 

Definition of “Indigenous Peoples”

 

Historically there has been no single way to define indigenous populations, and the terms used often vary locally. For example, in Australia the indigenous groups are commonly referred to collectively as aborigines and in the United States, they are referred to as Indians or Native Americans. This can be problematic at the international level because it can make it difficult to negotiate and draft treaties designed to protect indigenous groups, and can also complicate directives or policies by international organizations. Despite this complexity, in the past fifty years there has been a move toward a broad definition that is inclusive of various ethnic groups and appreciates the identity and heritage of each group.

 

In Indigenous Peoples in International Law, S. James Anaya defines the term “Indigenous” as referring “broadly to the living descendants of pre-invasion inhabitants of lands now dominated by others”.[2]  The term “Peoples” largely refers to communities with an identity that connects them with their past ancestors. [3]  International documents such as the Convention on Indigenous and Tribal Peoples, Convention No. 169 (1989) focus specifically on who is covered by the convention rather than trying to define “indigenous peoples”. [4] The World Bank issued Operational Directive 4.10 (2005), designed to replace Operational Directive 4.20 (1991), that recognizes the difficulty in defining “indigenous peoples”.  It provides a detailed and broad statement regarding those who the directive protects, and considers situations where it is not clear whether a specific community is included. [5]

 

A Brief History

 

Several centuries ago, the European nations settled in areas known today as North and South America, and eventually other areas would be inhabited including Australia and South Africa. [6] The native residents would be subject to slaughter, enslavement, and disease, and those who survived would endure a long history of discrimination at the hands of their new rulers[7]. Many nations, including the United States, would grant rights through case law and statutes to protect indigenous peoples living within their borders as well as their culture. Gradually it became apparent that this was an issue that needed to be dealt with at the international level. The international community has progressed in the recognition of indigenous human rights, as well as the protection of their right to maintain a separate culture, community, and tradition from the majority citizens.

 

In 1957, the International Labor Organization (ILO) Convention No. 107 viewed the plight of indigenous peoples within the concept of protecting individual rights, and not as a community. [8] This treaty was ratified by and remains in force for 18 countries. In 1989, a new treaty, The Indigenous and Tribal Peoples Convention, 1989 (No. 169), provided greater protections for indigenous peoples than the earlier convention by considering issues such as education, health, land rights, and employment. [9] Convention No. 169 is designed specifically to defend indigenous peoples by improving their living conditions, while preserving the identity and culture of the group as a whole. [10] The United Nations Declaration on the Rights of Indigenous Peoples was passed by the United Nations Human Rights Council on June 29, 2006 and was adopted by the United Nations General Assembly, stipulating extensive safeguards for indigenous peoples (especially in comparison with any other treaty previously) and further emphasizing the importance of protecting their identity as a group. [11]

 

Indigenous Populations

 

The following is a list of indigenous groups that a researcher will likely encounter, but it is important to keep in mind that there are numerous groups throughout the world, many which are not defined or even recognized by their state of residence. This list is by no means exhaustive.

 

Aboriginal and Strait Islander                                                                                                         Australia

Aleut                                                                                                                             Arctic

Amazigh (Berbers)                                                                                                    Africa                  

Indians                                                                                                                                                                 America

Inuit                                                                                                                                                     Arctic

Hill tribes or highlanders (Khmer Loeu)                                                                Asia (Cambodia)

Maori                                                                                                                                                    New Zealand

Sami (Lapp)                                                                                                                                    Europe

San                                                                                                                                                         Africa

 

Key Terms and Issues

 

The following are different terms and issues that one is likely to encounter when researching indigenous peoples in international law.

 

Aboriginal

Aboriginal Title

American Indian

Assimilation

Band

Culture

Child Labor

Climate Change

Conservation

Discrimination

Dispossession of Lands

Education

Environment

First Nations

Languages

Health Care

Human Rights

Identity

Indian

Indigenous

Intellectual Property (DNA, Agriculture)

Land Rights

Migration

Minorities

Native American

North America

Peoples

Poverty

Populations

Self-determination

Social Justice

Sovereignty

Sustained Development

Terra Nullius

Tradition

Traditional Knowledge

Transboundary

Tribal

 

Organizations

 

·         United Nations

 

 

 

 

 

 

 

 

 

 

·          International Indian Treaty Council

                                                                                                                                

·         Working Group on Article 8(j) of the Convention on Biological Diversity

 

·         Regional and National Organizations

 

o   African Union

 

o   American Indian Law Alliance

 

o   Asian Indigenous and Tribal Peoples Network

 

o   National Congress of American Indians

 

o   European Court of Human Rights  

 

o   Foundation for Aboriginal & Islander Research Action

 

o   Four Directions Council

 

o   Grand Council of the Crees (Quebec)

 

o   Inuit Circumpolar Conference

 

o   Inter-American Commission on Human Rights

 

o   Inter-American Court of Human Rights

 

o   Organization of American States (OAS)

 

o   Russian Association of Indigenous Peoples of the North, Siberia and Far East (RAIPON)

 

Documents

 

  • Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, Convention No. 107 (1957) [12]

This treaty was designed to protect the civil rights of indigenous peoples, but only within the context of individual rights, not as a right to coexist as a separate society within the nation. [13]

 

  • Convention Concerning Indigenous and Tribal Peoples in Independent Countries, Convention No. 169 (1989) [14]

This treaty is an update to Convention 107 and provides more protections for indigenous populations by seeking to improve their living conditions through education, employment, land rights, etc. while preserving their identity and culture as a separate group. [15] Only 20 nations have ratified this document to date.

 

  • United Nations Declaration on the Rights of Indigenous Peoples (2007) [16]

This declaration was adopted by the United Nations Human Rights Council on June 29, 2006 and was passed by the United Nations General Assembly on September 13, 2007 with a vote of 144 members in favor. Four nations, including the United States, voted against the declaration, and eleven members abstained. [17]

 

The provisions set standards that defend indigenous peoples as a group separate from the larger nation by allowing them to keep their cultures and traditions. The passage of this document is a major milestone for the rights of indigenous peoples internationally because of the broad protection.

 

  • AGENDA 21: Chapter 26 [18]

AGENDA 21 was passed at the United Nations Conference on Environment and Development in 1992 and stipulates that states take measures to give indigenous peoples more power to independently manage their land and resources in the pursuit of sustainable development. 

 

  • CERD General Recommendation (XXIII) Concerning Indigenous Peoples  [19]

This document implores nations to protect and promote the culture of indigenous groups living within their borders and respect their identity and language. States are urged to offer an environment that allows indigenous populations to be able to preserve their land and resources fitting with their culture.[20] This declaration also demands that governments take measures to protect indigenous peoples from discrimination and guarantee that all decisions affecting them are made only with their approval. [21]

 

  • Convention on Biological Diversity: Article 8 (In-situ Conservation) [22]

Signing nations have agreed, subject to their own laws, that they recognize and protect the traditions of indigenous peoples with respect to the “conservation and sustainable use of biological diversity”. [23]

 

  • Convention on the Rights of the Child [24]

This convention protects the rights of a child belonging to an indigenous group by asserting that no action should be taken that will prevent the child from enjoying “his or her culture, to profess and practice his or her own religion, or to use his or her own language” [25]. This document stipulates that the education the child receives accommodate his or her right to identify with the indigenous group. [26]

 

  • Declaration of Principles of Indigenous Rights [27]

Gives indigenous peoples the right to “self-determination”, limits the right of the larger state to intrude into their territories or government, and states that their laws must be recognized. [28] This document also endorses the right of self defense and protection of lands against the larger state, as well as control over education. [29]

 

  • Declaration of San Jose [30]

This document condemns ethnocide, which seeks to deny groups the right to self identity, equating this denial with genocide. [31]  Latin American nations are urged to recognize the right of indigenous peoples living within their borders to maintain their cultural identities, grant them autonomy over their territories, and respect them as a governing institution. [32]

 

  • Draft Declaration of Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemisphere [33]

This document provides the right of indigenous peoples to be viewed as nations with a government, territory, population, and the ability to contract and enter into treaties with other countries as separate entities. [34] States are implored to recognize indigenous groups as separate government institutions and acknowledge their territorial sovereignty. [35]

 

  • International Covenant on Civil and Political Rights [36]

This document discusses self-determination, and recognizes the rights of indigenous peoples as a group with respect to their culture, religion, and language. [37]

 

  • International Covenant on Economic, Social, and Cultural Rights [38]

This covenant asserts the right of self-determination and affords “rights to health, education, and an adequate standard of living”. [39]

 

  • Proposed American Declaration on the Rights of Indigenous Peoples [40]

Organization of American States (OAS) drafted this declaration, which asserts indigenous peoples’ right to independently govern their populations and demands recognition of their laws as a part of the larger nation’s legal system. In addition, it specifies economic and land rights as well as protection from abuse and discrimination.

 

  • Resolution on Action Required Internationally to Provide Effective Protection for Indigenous Peoples [41]

In 1994, the European parliament issued a resolution that incorporates parts of Convention 169. This resolution basically recognizes indigenous peoples’ right to autonomous control over their territory and culture.

 

  • World Bank Operational Directive 4.10: Indigenous Peoples [42]

This is a revision of the 1991 World Bank Operational Directive 4.20, which seeks to promote economic development through projects while preserving the culture and territories of indigenous peoples. The directive requires the involvement of indigenous peoples in making decisions on projects that will impact them. The revised document has a broader definition of “Indigenous Peoples” in section 4 than the 1991 version.

 

Secondary Sources

 

 

Use the Worldcat database to locate new books on this and other topics or through the Worldcat subscription database available at most academic research libraries.

 

o   Ali, Shaheen Sarder & Rehman, Javaid. Indigenous Peoples and Ethnic Minorities of Pakistan: Constitutional and Legal Perspectives. Richmond, Surrey: Curzon, 2001.

 

o   Anaya, S. James. Indigenous Peoples in International Law. New York: Oxford University Press, 2004.

 

o   Barnes, R.H., Gray, Andrew & Kingsbury, Benedict, eds. Indigenous Peoples of Asia. Ann Arbor: Association for Asian Studies, 1995.

 

o   Blaser, Mario, Feit, Harvey A. & McRae, Glenn, Eds. In The Way of Development: Indigenous Peoples, Life Projects, and Globalization. London; New York: Zed Books in association with International Development Research Centre, Ottawa, 2004.

 

o   Chatty, Dawn & Colchester, Marcus, eds. Conservation and Mobile Indigenous Peoples: Displacement, Forced Settlement, and Sustainable Development. New York: Berghahn Books, 2002.

 

o   Clearly, Edward L. & Steigenga, Timothy J., eds. Resurgent Voices in Latin America: Indigenous Peoples, Political Mobilization, and Religious Change. New Brunswick, N.J.: Rutgers University Press, 2004.

 

o   Eversole, Robyn, McNeish, John-Andrew & Cimadamore, Alberto D., eds. Indigenous Peoples and Poverty: An International Perspective. London; New York: Zed, 2005.

 

o   Lam, Maivan.  At The Edge Of The State: Indigenous Peoples and Self-Determination. Ardsley, NY: Transnational Publishers, 2000.

o   Lea, David. Property Rights, Indigenous People and the Developing World: Issues from Aboriginal Entitlement to Intellectual Ownership Rights.  Leiden; Boston: Martinus Nijhoff Publishers, 2008.

 

o   Maybury-Lewis, David, Ed. The Politics of Ethnicity: Indigenous Peoples in Latin American States. Cambridge, MA: Harvard University David Rockefeller Center for Latin American Studies, 2002.

 

o   Picolotti, Romina & Taillant, Jorge Daniel, eds. Linking Human Rights and the Environment. Tucson: University of Arizona Press, 2003.

 

o   Pritchard, Sarah, ed. Indigenous Peoples, the United Nations and Human Rights. London: Zed Books; Leichhardt, NSW, Australia: Federation Press, 1998.

 

o   Taylor, John & Bell, Martin, eds. Population Mobility and Indigenous Peoples in Australasia and North America. London; New York: Routledge, 2004.

 

o   Watters, Lawrence, ed. Indigenous Peoples, the Environment and Law: an Anthology. Durham: Carolina Academic Press, 2004.

 

o   Weller, Marc, ed. Universal Minority Rights: a Commentary on the Jurisprudence of International Courts and Treaty Bodies. Oxford; New York: Oxford University Press, 2007.

 

o   Westra, Laura. Environmental Justice & the Rights of Indigenous Peoples: International and Domestic Legal Perspectives. London; Sterling, VA: Earthscan, 2008.

 

 

o   LegalTrac Database (requires subscription). This is the electronic version of Current Law Index.  Search through law journal articles by subject, title, author, and publication using the advanced search feature. The user can also limit the results by date. Covers articles from 1980 until the present and select articles are available in full text in PDF and html.

 

o   American Association of Law Libraries. Index to Legal Periodicals. New York: H.W. Wilson Co, 1909.

 

o   American Association of Law Libraries & University of London. Index to Foreign Legal Periodicals. Berkeley: University of California Press for the American Association of Law Libraries, 1960.

 

o   Current Law Index. Los Altos: Information Access Corp, 1980. Included in LegalTrac.

 

 

See “Periodical Indexes” for sources that can be used to locate journal articles on indigenous peoples’ international law and other topics.

 

o   Alvarado, Leonardo J., Prospects and Challenges in the Implementation of Indigenous Peoples' Human Rights in International Law: Lessons from the Case of Awas Tingni v. Nicaragua, 24 Ariz. J. Int’l & Comp. L. 609 (2007).

 

o   Anaya, S. James, Divergent Discourses about International Law, Indigenous Peoples, and Rights over Lands and Natural Resources: Toward a Realist Trend, 16 Colo. J. Int’l Envtl. L. & Pol’y 237 (2005).

 

o   Bergin, Anthony, International Law and Indigenous Marine Rights: the Evolving Framework, 10 Envtl. Plan. L. J. 438 (1993).

 

o   Bratspies, Rebecca M., The New Discovery Doctrine: Some Thoughts on Property Rights and Traditional Knowledge (Symposium: Lands, Liberties, and Legacies: Indigenous Peoples and International Law), 31 Am. Indian L. Rev. 315 (2007).

 

o   Cassidy, Julie, The Enforcement of Aboriginal Rights in Customary International Law, 4 Ind. Int’l & Comp. L. Rev. 59 (1993).

 

o   Charters, Claire & Whakaue, Ngati, Indigenous Peoples’ Rights under International Law, 5  N.Z.Y.B. Int’l. L. 199 (2008).

 

o   Cirkovic, Elena, Self-Determination and Indigenous Peoples in International Law (Symposium: Lands, Liberties, and Legacies: Indigenous Peoples and International Law), 31 Am.  Indian L. Rev. 375 (2007).

 

o   Cohen, Cynthia Price, Development of the Rights of the Indigenous Child under International Law, 9 St. Thomas L. Rev. 231 (1996).

 

o   Corntassel, Jeff J.  & Primeau, Tomas Hopkins, Indigenous 'Sovereignty' and International Law: Revised Strategies for Pursuing 'Self-Determination’, 17 Hum. Rts. Q. 343 (1995).

 

o   Coombe, Rosemary J., Intellectual Property, Human Rights & Sovereignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and the Conservation of Biodiversity, 6 Ind. J. Global Legal Stud. 59 (1998).

 

o   Firestone, Jeremy, Lilley, Jonathan & de Noronha, Isabel Torres, Cultural Diversity, Human Rights, and the Emergence of Indigenous Peoples in International and Comparative Environmental Law, 20 Am. U. Int’l. L. Rev. 219 (2005).

 

o   Getches, David H., Indigenous Peoples' Rights to Water under International Norms, 16 Colo. J. Int’l Envtl. L. & Pol’y 259 (2005).

 

o   Gilbert, Jeremie, Historical Indigenous Peoples' Land Claims: a Comparative and International Approach to the Common Law Doctrine on Indigenous Title, 56 Int’l & Comp. L.Q. 583 (2007).

 

o   Godshall, Lauren E., Making Space for Indigenous Intellectual Property Rights under Current International Environmental Law,  15 Geo. Int’l. Envtl. L. Rev. 497 (2003).

 

o   Gordon, Seth, Indigenous Rights in Modern International Law from a Critical Third World Perspective (Symposium: Lands, Liberties, and Legacies: Indigenous Peoples and International Law), 31 Am.  Indian L. Rev. 401 (2007).

 

o   Halewood, Michael, Indigenous and Local Knowledge in International Law: a Preface to Sui Generis Intellectual Property Protection, 44 McGill L.J. 953 (1999).

 

o   Harhoff, Frederik, The Status of Indigenous Peoples under International Law: Greenland and the Right to Self-Determination, 32 Can. Y.B. Int’l L. 243 (1994).

 

o   Huff, Andrew, Indigenous Land Rights and the New Self-Determination, 16 Colo. J. Int’l Envtl. L. & Pol’y 295 (2005).

 

o   Kingsbury, Benedict, Reconciling Five Competing Conceptual Structures of Indigenous Peoples' Claims in International and Comparative Law, 34 N.Y.U. J. Int’l L. & Pol. 189 (2001).

 

o   Legg, Michael, Indigenous Australians and International Law: Racial Discrimination, Genocide and Reparations, 20 Berkeley J. Int’l. L. 387 (2002).

 

o   Lehmann, Karin, To Define or Not to Define - the Definitional Debate Revisited (Symposium: Lands, Liberties, and Legacies: Indigenous Peoples and International Law), 31 Am.  Indian L. Rev.  509 (2007).

 

o   Macklem, Patrick, Indigenous Recognition in International Law: Theoretical Observations, 30 Mich. J. Int’l L. 177 (2008).

 

o   Metcalf, Cherie, Indigenous Rights and the Environment: Evolving International Law, 35 Ottawa L. Rev. 101 (2003).

 

o   Miller, Russell A., Collective Discursive Democracy as the Indigenous Right to Self-Determination (Symposium: Lands, Liberties, and Legacies: Indigenous Peoples and International Law), 31 Am. Indian L. Rev. 341 (2007).

 

o   Mooney, Megan, How the Organization of American States Took the Lead: the Development of Indigenous Peoples' Rights in the Americas (Symposium: Lands, Liberties, and Legacies: Indigenous Peoples and International Law), 31 Am. Indian L. Rev. 553 (2007).

 

o   Newman, Dwight G., Theorizing Collective Indigenous Rights (Symposium: Lands, Liberties, and Legacies: Indigenous Peoples and International Law), 31 Am. Indian L. Rev. 273 (2007).

 

o   Oguamanam, Chidi, Indigenous People and International Law: the Making of a Regime, 30 Queen’s L.J. 348 (2004).

 

o   Parrish, Austen L., Changing Territoriality, Fading Sovereignty, and the Development of Indigenous Rights (Symposium: Lands, Liberties, and Legacies: Indigenous Peoples and International Law), 31 Am. Indian L. Rev. 291 (2007).

 

o   Porter, Robert B., Pursuing the Path of Indigenization in the Era of Emergent International Law Governing the Rights of Indigenous Peoples, 5 Yale Hum. Rts. & Dev. L.J. 123 (2002).

 

o   Smelcer, John D., Using International Law More Effectively to Secure and Advance Indigenous Peoples' Rights: Towards Enforcement in U.S. and Australian Domestic Courts, 15 Pac. Rim L. & Pol’y J. 301 (2006).

 

o   Smith, Dana Collier, Doctrinal Anachronism? Revisiting the Practicably Irrigable Acreage Standard in Light of International Law for the Rights of Indigenous Peoples, 22 Ariz. J. Int’l & Comp. L. 691 (2005).

 

o   Swepston, Lee, A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No. 169 of 1989, 15 Okla. City U. L. Rev. 677 (1990).

 

o   Triggs, Gillian, Australia's Indigenous Peoples and International Law: Validity of the Native Title Amendment Act 1998, 23 Melb. U. L. Rev. 372 (1999).

 

o   Valenta, Lisa, Disconnect: the 1988 Brazilian Constitution, Customary International Law, and Indigenous Land Rights in Northern Brazil, 38 Tex. Int’l L. J. 643 (2003).

 

o   Wiessner, Siegfried, Indigenous Sovereignty: a Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples, 41 Vand. J. Transnat’l L. 1141 (2008).

 

Online Sources

 

·       Aboriginal Canada Portal

 

First Nations, Metis and Inuit online resources and government programs and services.

 

·       Aboriginal Connections

 

·       American Society for International Law

 

·       Federal Court of Australia-Native Title Infobase

 

  • PRO 169 Training Tool Box on Indigenous Peoples’ Rights <http://pro169.org/> Includes access to ILO Convention No. 169 manual and UNDG Guidelines on Indigenous Peoples’ Issues manual.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other Sources

 

 

 

 

 

Sources used for this Research Guide

 

·       Anaya, S. James. Indigenous Peoples in International Law. New York: Oxford University Press, 2004.

 

·       Lea, David. Property Rights, Indigenous People and the Developing World: Issues from Aboriginal Entitlement to Intellectual Ownership Rights.  Leiden; Boston: Martinus Nijhoff Publishers, 2008.

 

·       Westra, Laura, ed. Environmental Justice & The Rights Of Indigenous Peoples: International and Domestic Legal Perspectives. London; Sterling, VA: Earthscan, 2008.

 

  • Picolotti, Romina & Taillant, Jorge Daniel, eds. Linking Human Rights and The Environment, Tucson: University of Arizona Press, 2003.

 



[1] Special thanks to the following for their suggested comments and revisions:  Sherri Thomas, Law Librarian and Professor of Law Librarianship at the University of New Mexico Law Library; Spencer Simons, Director and Professor of Law at the University of Houston Law Center, O’Quinn Law Library; Mon Yin Lung, Associate Director at the University of Houston Law Center, O’Quinn Law Library; Lauren Schroeder, Reference and Research Librarian at the University of Houston Law Center, O’Quinn Law Library; and Dan Baker, Reference and Research Librarian at the University of Houston Law Center, O’Quinn Law Library.

[2] Anaya, S. James. Indigenous Peoples in International Law, p. 3. New York: Oxford University Press, 2004.

[3] Id.

[4] International Labor Organization (ILO), General Conference, 76th Session, Geneva, (June 27, 1989), (Entered into force September 5, 1991), available at: http://www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng&document=170&chapter=1&query=%23subject%3D20&highlight=&querytype=bool&context=0

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 colonization 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.

2. 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.

3. The use of the term "peoples" in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.

[5] World Bank Operational Directive 4.10: Indigenous Peoples (July 2005), available at: http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTSOCIALDEVELOPMENT/EXTINDPEOPLE/0,,menuPK:407808~pagePK:149018~piPK:149093~theSitePK:407802,00.html:

4. For purposes of this policy, the term “Indigenous Peoples” is used in a generic sense to refer to a distinct, vulnerable, social and cultural group possessing the following characteristics in varying degrees:

(a) self-identification as members of a distinct indigenous cultural group and recognition of this identity by others;

(b) collective attachment to geographically distinct habitats or ancestral territories in the project area and to the natural resources in these habitats and territories 

(c) customary cultural, economic, social, or political institutions that are separate from those of the dominant society and culture; and

(d) an indigenous language, often different from the official language of the country or region.

A group that has lost "collective attachment to geographically distinct habitats or ancestral territories in the project area"; (paragraph 4 (b)) because of forced severance remains eligible for coverage under this policy.  Ascertaining whether a particular group is considered as “Indigenous Peoples” for the purpose of this policy may require a technical judgment (see paragraph 8).

8. Early in project preparation, the Bank undertakes a screening to determine whether Indigenous Peoples (see paragraph 4) are present in, or have collective attachment to, the project area. In conducting this screening, the Bank seeks the technical judgment of qualified social scientists with expertise on the social and cultural groups in the project area. The Bank also consults the Indigenous Peoples concerned and the borrower. The Bank may follow the borrower’s framework for identification of Indigenous Peoples during project screening, when that framework is consistent with this policy.

[6] Anaya, S. James. Indigenous Peoples in International Law, pp. 3-6. New York: Oxford University Press, 2004.

[7] Id.

[8] Id. at 55.

[9] International Labor Organization (ILO), General Conference, 76th Session, Geneva (June 27, 1989), (entered into force September 5, 1991), available at: http://www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng&document=170&chapter=1&query=%23subject%3D20&highlight=&querytype=bool&context=0

[10] Id.

[11] United Nations Permanent Forum on Indigenous Issues, United Nations Declaration on the Rights of Indigenous Peoples, available at: http://www.un.org/esa/socdev/unpfii/en/declaration.html.

[12] International Labor Organization (ILO), Geneva (June 26, 1957), 328 U.N.T.S. 247, (entered into force June 2, 1959), available at: http://www.ilo.org/images/empent/static/coop/pdf/Conv107.pdf.

[13] Anaya, S. James. Indigenous Peoples in International Law, p.55. New York: Oxford University Press, 2004.

[14] International Labor Organization (ILO), General Conference, 76th Session, Geneva (June 27, 1989), (entered into force September 5, 1991), available at: http://www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng&document=170&chapter=1&query=%23subject%3D20&highlight=&querytype=bool&context=0

[15] Id.

[16] United Nations General Assembly, Res. 61/295 (September 13, 2007), available at: http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.

[17] United Nations Permanent Forum on Indigenous Issues, United Nations Declaration on the Rights of Indigenous Peoples, available at:  http://www.un.org/esa/socdev/unpfii/en/declaration.html.

[18] United Nations Conference on Environment and Development, Rio de Janeiro, (June 13, 1992), U.N. Doc. A/CONF.151/26 (vol. 3), at 16, Annex 2 (1992), available at: http://www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.htm.

[19] United Nations Committee on the Elimination of Racial Discrimination, 1235th meeting (August 18, 1997), U.N. Doc. CERD/C/51/misc. 13/Rev. 4 (1997), reprinted in Anaya, S. James. Indigenous Peoples in International Law, pp. 341-342. New York: Oxford University Press, 2004.

[20] Id.

[21] Id.

[22] Convention on Biological Diversity, art. 8(j), UNCED, Rio de Janiero, (June 5, 1992), 1760 UNTS 79, 31 ILM 818 (1992) (entered into force December 29, 1993), available at: http://www.cbd.int/convention/convention.shtml.

[23]Id.

[24] United Nations General Assembly, Res. 44/25, (November 20, 1989), 1577 U.N.T.S. 3,  28 I.L.M. 1456 (entered into force September 2, 1990), available at: http://www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng&document=170&chapter=1&query=%23subject%3D20&highlight=&querytype=bool&context=0

[25] Id.

[26] Id.

[27] Adopted by representatives of indigenous peoples and organizations meeting in Geneva (July 1985), in preparation for the fourth session of the U.N. Working Group on Indigenous Populations, and by representatives of indigenous peoples and organizations meeting, Geneva (July 1987) in preparation for the group’s fifth session, UN Doc. E/CN.4/Sub.2/1987/22.Annex 5 (1987), reprinted in Westra, Laura. Environmental Justice & The Rights Of Indigenous Peoples: International and Domestic Legal Perspectives, pp. 291-293. London; Sterling, VA: Earthscan, 2008.

[28] Id.

[29]Id.

[30] UNESCO Meeting of Experts on Ethno-Development and Ethnocide in Latin America, San Jose, Costa Rica (Dec. 11, 1981), UNESCO Doc. FS.82/WF.32 (1982), reprinted in Westra, Laura. Environmental Justice & The Rights Of Indigenous Peoples: International and Domestic Legal Perspectives, pp. 293-294 London; Sterling, VA: Earthscan, 2008.

[31] Id.

[32] Id.

[33] Non-Governmental Organizations (NGO) Conference on Discrimination Against Indigenous Populations, Geneva (1977), U.N. Doc. E/CN.4/Sub.2/476/Add.5, Annex 4 (1981), reprinted in

Westra, Laura. Environmental Justice & The Rights Of Indigenous Peoples: International and Domestic Legal Perspectives, pp. 289-290. London; Sterling, VA: Earthscan, 2008.

[34] Id.

[35] Id.

[36] United Nations General Assembly, Res. 2200A (XXI) (December 16, 1966), 999 U.N.T.S. 171, (entered into force, March 23, 1976), available at: http://www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng&document=170&chapter=1&query=%23subject%3D20&highlight=&querytype=bool&context=0.

[37] Id.

[38] United Nations General Assembly, Res. 2200A (XXI) (December 16, 1966), 999 U.N.T.S. 3, (entered into force, January 3, 1976), available at: http://www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng&document=170&chapter=1&query=%23subject%3D20&highlight=&querytype=bool&context=0

[39] Id. Anaya, S. James. Indigenous Peoples in International Law, p. 149. New York: Oxford University Press, 2004.

[40] Inter-American Commission on Human Rights, 1333rd session, 95th regular session (February 26, 1997), O.A.S. Doc. OEA/Ser.L/V/II.95, Doc. 7, rev. (1996), reprinted in Westra, Laura. Environmental Justice & The Rights Of Indigenous Peoples: International and Domestic Legal Perspectives, pp. 306-308. London; Sterling, VA: Earthscan, 2008.

[41] European Parliament, Strasbourg (February 9, 1994), Eur. Parl. Doc. PV 58(II) (1994), reprinted in Anaya, S. James. Indigenous Peoples in International Law, pp. 328-330. New York: Oxford University Press, 2004.