FDCIP 2013 Best and Bad Practices Introduction

Best and Bad Practices: An Introduction

Professor Jens Dahl
Former Director of IWGIA and Member of the Forum Advisory Board

Since the turn of the millennium, Indigenous peoples have gained a number of achievements on the international scene, first of all within the United Nations system. In the first instance, it was the establishment of the Permanent Forum in the year 2000, which was followed by the establishment of the office of the UN Special Rapporteur on the Rights of Indigenous Peoples in 2001. In 2006, the Human Rights Council dissolved the Working Group on Indigenous Populations but two years later a new body saw the light of day when the Expert Mechanism on the Rights of Indigenous Peoples became an advisory body to the Human Rights Council. With these three bodies in existence, Indigenous peoples have achieved what no other subordinate group has been able to achieve within the United Nations system. These bodies were given legal frame and moral substance when the General Assembly of the United Nations, in 2007, adopted the Declaration on the Rights of Indigenous Peoples.

We celebrate these achievements and we praise those whose efforts made it possible. There is general agreement that after these milestone achievements the great challenge is the implementation of the rights as entrenched in the Declaration on the Rights of Indigenous Peoples.

But outside the corridors of the United Nations and the international legal mechanisms, the realities on the ground point in a completely different direction. Every day information reaches us about how the political rights of Indigenous peoples in Russia have been restricted, that Indigenous peoples in Malaysia and Indonesia are losing their lands to palm oil plantations, and pastoralists are being evicted from their lands in Africa to make way for national parks. Just as we thought that Indigenous peoples in countries like Bolivia and Canada were facing a new future we saw how oil, gas, and tar sands projects have deteriorated the lives of Indigenous peoples. My blunt observation is that Indigenous peoples worldwide have never been in a more precarious situation than is the case today. In spite of the progress made in Geneva and in New York.

This is why we, when we initiated the planning of this conference, decided to try to turn things a bit around and move away from the dominant discourse, which since the adoption of the Declaration has focused on the implementation of rights; instead we wanted to focus on the incorporation of rights by Indigenous peoples who live under conditions that vary enormously from country to country and from continent to continent. It is perhaps the same process but looked at from two different angles. So, my concern or my focus is in the first instance not upon the rights but on the peoples. I want us to move away from looking at Indigenous peoples as those adopting rights that have been established in corridors, which are outside their control, and look at Indigenous peoples as actors in their own destiny. I ask myself, who are the people who should benefit from the international rights of Indigenous peoples? What means are at their disposal for improving their living conditions and their rights as inhabitants of local communities and nation-states? What are the practical conditions for Indigenous peoples locally to have agency, to incorporate rights adopted in international fora and thus become their own advocates?

First, let me return to my blank statement that the fate of Indigenous peoples worldwide has deteriorated at the same time as the international legal rights mechanisms have improved their legal position significantly. There are significant variations, I know. It seems to be most serious in Africa caused by land grabbing, due to lands and territories set aside for national parks, etc. Countries like the UK, China, Saudi Arabia, the Emirates and others are buying or renting land on other continents to grow cash crops as well as subsistence crops for their own populations. The neo-liberal economy has opened for large evictions of peoples, not least Indigenous peoples, from their lands to be bought by investors of all kinds. In Asia, palm oil plantations are not only an environmental threat but Indigenous communities loose their fundamental rights and means of subsistence.

Unfortunately, there are many sad stories to tell. Even from one of the more democratic and developed African countries like Botswana. It was in 1992 that the first organisation of Bushmen or San, in that country managed to establish their first organisation, the First Peoples of the Kalahari, or FPK. A group of San lived under constant threat to be evicted from the Central Kalahari Game Reserve, and with their own organization, they were able to gain support from outside Botswana and to start challenging Botswana government policy. For two decades these San have fought for their rights in the media, in the court, and in the United Nations; and to some extent, they have been able to slow down the process that turned them into destitute squatters of settlements and towns on the fringes of the Central Kalahari Game Reserve. Today, however, the First Peoples of the Kalahari seem to be an organisation that is ripped apart due to yearlong mismanagement of finances, internal quarrels, and with a Board of Directors that have not met for years. The consequence is that, today, FPK is being dispossessed of properties, and in case it still exists in its name, it will be unable to operate. What the future holds for the people of the Central Kalahari Game Reserve, I am unable to predict, but my point with taking up this example is very simple: the First Peoples of the Kalahari have never developed the capacity to develop a strategy to incorporate those rights that are relevant for them in their Botswana setting. Organisations from outside the local realities, like IWGIA and Survival International that have supported FPK for many years, may be able to develop strategies on how to implement international rights in the Botswana legal system, but things fall apart too easily when the people concerned do not incorporate these rights. I guess that in this case we have come down to the basic question of capacity, simply: How do we run an organisation?

In Botswana as well as in the case that I will present now, the government is an obstacle and an impediment for the Indigenous peoples to have even their most elementary rights recognised. There is no room for negotiations when governments consider the Indigenous peoples as an obstacle to what they see as development. In such cases, the people concerned my choose to circumvent the state and go directly to the international community, alias the United Nations.

In 2001, a young Parakuiyo-Maasai, Adam Mwarabu, from Tanzania went for the first time to the United Nations to take part in the meeting of the Working Group on Indigenous Populations. He had become interested in Indigenous rights after having followed a court case against pastoralists from Mkomazi Game Reserve. In 2002, he acquired a UN fellowship and the year after, in 2003, he was instrumental in the establishment of the first organisation of his Parakuiyo people. This organisation, PAICODEO, registered in 2006, has since then been able to obtain funding for various capacity-raising activities, established a small office, sensitized pastoralist communities and to actively advocate and protect their basic human rights in terms of the use and management of land resources. The Parakuyio, as with other pastoralists, are constantly exposed to evictions from their lands, and Adam Mwarabu and PAICODEO has given interviews to newspapers, on television, and given statements to the parliament and met with ministers, etc. Most importantly, in my observation, is that they have mobilised people in, and across, local communities in a process in which people have understood that they must contribute with their own limited financial means. Furthermore, it seems to my superficial observation, that they also have acquired a realistic view in relation to what can be achieved politically under current conditions in Tanzania.

Let us compare this situation to that of the San in Botswana and ask why this has been possible.

First of all, PAICODEO has managed to merge traditional leadership with the legal and administrative demands of an NGO. The traditional leaders take part in the organisational and political processes and they do it across communities. Secondly, due to his year-long work with the United Nations as the leading person, Adam Mwarabu has been able to frame the identification as being Parakuyio and the traditional rights as pastoralists into the national and international legal language and thus forced the authorities to at least listen to them. In the words of James Scott when he writes about passive resistance: “It is only when the hidden transcript is openly declared that subordinates can fully recognize the full extent to which their claims, their dreams, their anger is shared by other subordinates with whom they have not been in direct touch” (Domination and the Arts of Resistance, p. 223). The human rights abuses continue this day, every day, but it no longer goes unnoticed. The third reason why PAICODEO seems to be able to achieve what the First Peoples of the Kalahari have not managed to – even after having been supported financially from outside for so many years – is that PAICODEO has been able to use knowledge provided by lawyers, researchers, and others and to establish trust relationships with other NGOs and donors. In all these respects, the case of PAICODEO is in sharp contrast to that of the San of the Central Kalahari Game Reserve.

But the deterioration of the rights of Indigenous peoples is not limited to the poorer continents. The political and legal attacks against Indigenous peoples in Russia are outrageous as we may learn more about during this conference. Even in Canada, one of the countries that firmly endorsed the establishment of the Permanent Forum, in the end also rejected the Declaration; things seem to fall apart. Following a recent official visit to Canada, the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, said in a concluding statement to the visit, that, and I quote “Canada faces a crisis when it comes to the situation of the Indigenous peoples in that country.” Among other things, he referred to the “high level of distrust” between Indigenous peoples and the authorities, to unresolved treaty rights, and the serious problems with substandard housing under Arctic and Sub-arctic conditions.

There also positive cases from the rich Arctic democracies, cases from which we should learn and I turn to the issue of capacity of Indigenous organisations. Only a few years ago, in 2009, the Inuit of Greenland gained self-rule within the Danish realm following thirty years of home-rule. Self-rule is as close to independence as any Indigenous group can expect to achieve. There are many historical reasons for this success, but let me restrict this to only mention some of those organisational factors that make the situation of the Inuit of Greenland different and from which we can learn. First of all, the Greenlanders had the negotiating capacity, including the ability to establish a dialogue with the Danish government, and they were from the very early steps of negotiation predisposed to negotiate with the Danish government. This negotiating capacity includes the ability to choose the conflict when this was needed but to do it in a non-confrontational manner, which allowed further negotiations. Secondly, the Greenlanders were strongly goal-oriented and they were willing to compromise without ever loosing the overall aim. Third, the negotiators were firmly entrenched in the Greenlandic society and were recognised to represent all Greenlanders.

So, 1) the Greenlanders had the negotiating capacity, some of which they had learned in the United Nations, 2) they were goal-oriented, 3) they were firmly rooted in the communities, but, they were also able to incorporate significant parts of the 2007 Declaration as legal arguments for their claims. Thus, they used the Declaration directly in their efforts to be recognized as a people according to international law.

If we shortly compare the case of the Inuit of Greenland with the Parakuyio of Tanzania and consider both experiences as best practices we are struck by some similarities and some differences. Both have acquired negotiating abilities in and during the process that lead to, among other things, the adoption of the Declaration on the Rights of Indigenous Peoples. But where the Inuit have used the language of the Declaration to become more independent of Denmark, as specified in Article 3, which says that “Indigenous peoples have the right to self-determination,” the Parakuyio’s main aim have been to obtain de facto equal rights with other citizens of that country by using Article 26 on land rights to frame traditional rights into the language of international law. When Article 26, 2 says that “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired” it reveals that to the Parakuyio and many other Indigenous peoples in Africa have used the UN experience to create common understanding among themselves. This is self-determination in the Tanzanian perspective – quite different from the Inuit understanding of the same term.

A few minutes ago I quoted the anthropologist James Scott who, in his writing about the “Weapons of the Weak,” makes a distinction between the public and the hidden transcript. In a hegemonic relationship where the subordinates have no opportunity to make open rebellion people often turn to various forms of, mainly individual, deference. In such relationships the subordinates have learned, and I quote “to clothe their resistance and defiance in rituals of subordination that serve both to disguise their purposes and to provide them with a ready route of retreat that may soften the consequences of a possible failure” (Scott 1990, 96). The hidden transcript as mentioned and described by Scott (1990) covers individual deference in a wide variety of forms, ranging from work sabotage, poaching, gossip and a large number of physical disguises when the subordinate is confronted with the superior.

I have not seen anyone mentioning this, in a way very rudimentary strategy, as having been adopted among Indigenous peoples in Africa and this leads me to a very sad point in the history of Indigenous peoples, not only in Africa, but also in Russia, parts of the Americas, Australia and Asia.

In the initial colonial period the settlers to North America, Australia and southern Africa depended on establishing friendly relations with the Aboriginal populations, but, as soon as they had established themselves, they no longer relied on these groups but on their lands and the Aboriginal people were wiped off their lands. Passive resistance as a “weapon of the weak” does not help here. Why? Because governments and companies do not need Indigenous peoples! They only need their lands. The dominance of the state is not that of a mutual, although hegemonic, relationship because the Indigenous peoples are superfluous to the neo-liberal policies of the states and companies.

Today, a similar process takes place in Africa, in Asia and other parts of the Indigenous world. Governments and the companies do not need Indigenous peoples – they are only seen as an obstacle to development. For governments and companies are no reasons for establishing hegemonic relationships. There are no power relations – there are no relationships. This is important because we find here, maybe, the prime reason for the discrepancy between the achievements that Indigenous peoples have gained in the United Nations and the developments on the ground.

In Latin America the picture is more complicated because of the numerical number of Indigenous peoples in many countries is quite high and because the Indigenous communities are important to the national economy and cannot be replaced. Only in the lowlands and in the Amazon we find a situation similar to that of Africa.

What I have advocated for today is that the rights of Indigenous peoples being interpreted from the practices realities on the ground. Or in other words, the capacity of Indigenous peoples to incorporate international legal standards in order to improve their daily living conditions. When we, however, look at the success that Indigenous peoples have had on the international scene there are, in my opinion, some observations that are relevant in each and every Indigenous community.

The first, and very simple one, is that Indigenous peoples need to be organized in order to be able to deal with governments.

The second observation is that Indigenous peoples created alliances among themselves and in this process they continuously negotiated and renegotiated their identity and their positions towards the states. Indigenous peoples created a space for themselves, a space that was inclusive and new Indigenous groups were continuously incorporated. Indigenous peoples created bonds of solidarity rather than each group trying to promote their own agenda.

The third observation is that Indigenous peoples developed a highly advanced system of negotiating with governments based upon a structure that allowed them to meet and to reach consensus and to elect delegates that can represent the group as a whole.

These three observations from the United Nations are worth remembering as pre-conditions for those who, on the ground, wish to incorporate and use international legal standards in their day-to-day dealing with often not too friendly governments.

Finally, I would like to make a few remarks on the means adopted by Indigenous peoples in order to reach their goals. In the early days of the Indigenous peoples’ appearance at the United Nations they played the card of being the “other.” They turned around the prejudices and stereotypes prevalent by most representatives of states and made it active and made them into symbols that said: “we are different.” It worked! They also played the David and Goliath card and shamed the powerful governments and multinational companies in their policies against small Indigenous minorities who became victims. It worked! And with great success they used walkouts, which worked when governments had become politically dependent on some kind of participation of Indigenous peoples in the process.

Such means are not necessarily available for Indigenous peoples in their local settings. But sometimes it works. Let me just remind you about the Sámi who put up their traditional Sámi tents in front of the Norwegian Parliament in protest against the building of the Alta dam. These Sámi played the exotic card as well as David against Goliath. Or the Indigenous women of the Philippine Cordillera Mountains to protest against the building of another dam; they physically blocked the way for the heavy machineries.

There are at least two global trends in how governments deal with Indigenous peoples. One is, as I have highlighted, that Indigenous peoples increasingly have become obstacles to what governments see as development in a period when neo-liberal thinking is completely dominating.

My point is that in such a period, where Indigenous peoples are faced with a deterioration of their living condition and face continuous violations of their human rights, the solution may not be found in legal arguments, but in making the world aware of the situation by applying types of civil disobedience or non-violent means of active protests.

The other trend is that a number of governments who were in the forefront to have Indigenous rights recognized by the United Nations, since 2007, in the best case have lost interest in the Indigenous issues and in the worst case see them as an obstacle in a period of economic crisis.