ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS

Indigenous and Tribal Peoples Convention ILO 169: Applying an international rights-based convention to Indigenous livelihoods Nicki Mosley University of Calgary Social Policy Prof. John Graham

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS

Indigenous and Tribal Peoples Convention ILO 169: Applying an international rights-based convention to Indigenous livelihoods

Introduction The International Labour Organization (ILO) revised its 1957, integrationist approach Indigenous and Tribal Populations Convention No. 107 to create the Indigenous and Tribal Peoples Convention No. 169. Aiming to recognize Indigenous peoples right to selfdetermination within a nation-state, rather than assimilation, the convention is based upon the key concepts of consultation and participation. This international convention is a contribution to reduce poverty of these most marginalized people using a human rights based approach. In order to sustain the livelihoods of indigenous people, Craig (2007) argues that human rights is a pre-condition to sustainable development therefore, environmental land rights is a necessary pre-cursor to human rights. ILO 169 is one of the first international conventions that is inclusive of land rights. The Convention takes steps to incorporate an indigenous ideology and worldview that a person cannot exist separate from the land all parts that make up ones livelihood are interdependent and interrelated (Craig, 2007). Although a step in the right direction, supporting the indigenous movement through reform, there remains controversy over this convention amongst scholars and indigenous leaders for not fully embodying the indigenous point of view (Shulting, 1997). Indigenous Peoples confront increasing external pressures on their lands, territories, resources, knowledge, innovations and practices (Craig, 2007, p. 81) yet remain marginalized. Despite the symbolic high level of global gains this convention portrays, questions regarding the impacts on poverty and local community benefits remain to be answered (Jones, 2012). This

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS

paper will explore this global, rights based approach questioning if it is the most appropriate way to ensure the protection of land and sustainability of indigenous livelihoods. The ILO 169 applies an over arching human rights based framework to form social policy. This paper begins with an exploration of distinctions between a human rights approach, created by WEIRD (Western, educated, industrialized, rich, and democratic) societies and ideologies of individual freedoms, and indigenous rights based approach, incorporating both individual and collective rights (Haidt, 2012). A critical analysis of these approaches will follow. An exploration of ILO Convention No. 107 and ILO Convention No. 169 provides context for critiquing ILO 169 and the implementation techniques. A case study of Ecuador will follow, offering an example of implementation; the government of Ecuador recently found them selves in the Inter-American Court of Human Rights being tried for granting an oil concession on the ancestral lands of the indigenous Sarayaku people. The incorporation of a case study aims to provide insight into both the challenges and positive outcomes associated with the implementation of the ILO 169. Recommendations will follow with concluding remarks.

Human Rights and Indigenous Rights Based Approaches To explore the appropriateness of an international, rights based convention created to recognize and protect the rights of indigenous peoples, the notion of human rights and indigenous rights must be understood. This provides context for the objectives of the ILO 169. It is viable to argue that a moral ideology forms the foundation of any rights based approach, human or indigenous. This paper argues that the concept of rights are grounded in a western ideology based upon dualism, a different perspective than a collective worldview. As Haidt distinguishes, cultures that are Western, educated, industrialized, rich, and democratic (WEIRD) see:

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS

A world full of separate objects, rather than relationships[and] related to this difference in perception is a difference in thinking style. Most people think holistically (seeing the whole context and the relationships amongst the parts), but WEIRD people think more analytically (detaching the focal object from its context, assigning it to a category, and then assuming that whats true about the category is true about the object)If WEIRD and non-WEIRD people think differently and see the world differently, then it stands to reason that theyd have different moral concernsIf you live in a non-WEIRD society in which people are more likely to see relationships, contexts, groups, and institutions, then you wont be so focused on protecting individuals. Youll have a more sociocentric morality, which means you place the needs of groups and institutions first, often ahead of the needs of individuals. (2012, p. 96-98) Indigenous peoples operate as a non-WEIRD society, approaching life with a sociocentric morality, placing priority within the collective. They do not fragment or compartmentalize their rightsrelating to their ecological, spiritual, cultural, economic, and social dimensions (Craig, 2007, p. 87). A worldview that thinks through the lens of interdependent relationships, applying the ethic of community and divinity to their language of morals, employs a deeper layer of morality than just the descriptive principles of harm and fairness. This paper argues ILO 169 was largely drafted and completed by WEIRD peoples, with some consultation from non-WEIRD peoples. Therefore, it ultimately remains to serve an autonomous perspective, however, taking steps in the right direction to understanding and being inclusive of societies that place value in collective, acknowledging interdependent relationships (Haidt, 2012). Being a step in an appropriate direction to support a global indigenous movement, a rights based approach aligns with David Gils value-driven argument of social policy. [It] must

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS promote and enhance human development and potential and in doing so, serve as guidelines for behaviour[It] should reflect long-range visions of what a just and non oppressive society would look like (As cited in Delaney, Graham, & Swift, 2012, p. 182). A rights based convention oriented to support some of the most oppressed and marginalized people on this planet appears a suitable approach to alleviate some of the injustices and patterned inequalities.

However, for a convention ratified within a specific country to fully live into the potential within the document, the convention must become the centerpiece for the development of all social policy within the nation (Delaney et al, 2012). This places demands on the system making up a nation-state. Political left and right, indigenous civil society and government officials, need to work together to create equal outcomes that will serve the diversity of worldviews. Integrating all these parts into the process of generating and implementation of social policy can be challenging. Therefore, as an international legally binding Convention, a number of challenges arise within the context of a rights based approach that authorities and governments must remain attuned to. A human rights based approach can solicit positive outcomes, although it remains controversial in implementation and practice. Human rights are concerned with equality and fairness, recognizing the freedom to make choices about life and to develop ones human potential. The aim is to live a life free from fear, harassment, and discrimination (John Humphrey Centre, 2011). A common criticism of the approach is the gaps [present] between the promises and the actual outcomes (Jones, 2012, p. 625). In the context of ILO 169, responsibility rests within the State to take appropriate measures to ensure proper implementation of the convention shrinks and closes the gaps. There is no mention of other stakeholders potentially involved in the implementation of policies, such as corporations.

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS Aiming to enhance levels of equality and while ensuring the sustainability of indigenous livelihoods, the overarching Convention relies heavily on the nation-state to be accountable to their morals and values. If not up held, rights may work against those marginalized due to reasons of a) quality of representation, participation, and organization of civil society; b) political capacity of state structures, political parties, and legal system; and c) the ability or lack of ability for theses two facets of society to connect, for the voice of communities to work on

solidarity with institutional mechanisms maintaining pressure on top down accountability. For a rights based approach to be applicable, there is a requirement for civil society and governments to not only have knowledge capacity of rights, but also an understanding of how to maintain and implement rights based standards (Jones, 2012). This is all evidence of the challenges associated with the implementation of rights based conventions. Defining Indigenous Peoples is known to be difficult with varied outcomes throughout the world. The ILO Convention 169 strives to not define these peoples, yet provides criteria about those they hope to protect. The ILO 169 identifies Indigenous People in Article 1(1)(b) as: peoples in independent countries who are regarded as indigenous on account of their descent from 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 states boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. (ILO, 2012) The rise of indigenous rights discourse and practice will be discussed based upon Taylors (1994) arguments of identity politics within his essay on the politics of recognition. He distinguishes between the politics of universalism (based on individual rights and equality) and the politics of difference (value of different culture and identity is equal, therefore deserve

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS equal recognition, but not necessarily equal treatment) (Taylor, 1994). Therefore rights are justified to protect the cultural integrity and the range of cultural patterns associated with the culture in question (Jones, 2012, p. 626). There is ongoing debate regarding individual rights and collective rights, complete equality and the recognition of difference. Historically, indigenous peoples have vulnerable and easily exploited by nation states,

colonized and enslaved, often viewed as second class citizens within western political ideologies. During a time where the wealth of a nation is closely linked to their natural resources, land rights are a consistent space of conflict. Within this paper, it is argued that indigenous peoples are different based upon cultural characteristics and they deserve equal rights and freedoms to their fellow citizens. A distinct trait of indigenous is they have traditionally accumulated knowledge passed on over thousands of years, gaining sacred understandings of the local land that forms their culture and knowledge systems (Craig, 2007). Communities see nature as an integral part of human existence, in which utilization is a part of the celebration of life (Posey as cited in Craig, 2007, p. 82). This relationship with nature land, animals, insects, elements, and spirit contributes to distinguishing indigenous rights from human rights. Cultural integrity relies upon patterns that establish rights to lands and natural resources, and are embodied in indigenous customary law and institutions that regulate indigenous societies (Jones, 2012, p. 627). Therefore, indigenous peoples rights are tied to their rights to lands and territories, giving rise to conflict over natural resources (Jones, 2012). Indigenous people are seeking both their individual and collective rights, not only rights of equality but also the possibility of existing and being recognized as distinct peoples (Yupsanis, 2010). Their hope to assert collective rights and obligations is to ensure the maintenance and evolution of their cultures and nations in the face of discrimination, environmental change, and economic and cultural impacts from the dominant

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS society (Craig, 2007). Conflict remains between indigenous worldviews that everything is interrelated and interdependent, and western worldviews that are imbedded in the economic,

political and legal frameworks creating social policy. Based upon their unique relationship with the earth, indigenous peoples dont fragment or compartmentalize their rights and obligations relating to their ecological, spiritual, cultural, economic and social dimensions (Craig, 2007, p. 87). This worldview not only makes creating laws and policy challenging, but has also become a matter of global interest and exploitation. Applying a rights based approach to ILO 169 raises some challenges around implementation, accountability, conflict of interests and worldviews situated within separate ideologies. However, it must be noted that ILO 169 provided the grounding for the creation of the United Nations (UN) Declaration of the Rights of Indigenous Peoples and although there remains some contentious issues for both these documents, it has been noted by a number of scholars and indigenous leaders that the Convention and the Declaration are a step in the right direction. The ILO 169 is bringing these marginalized peoples to the forefront of countries that have ratified the Convention.

ILO No. 107 and ILO No. 169 The International Labour Organization is a UN agency that established the Indigenous and Tribal Populations Convention, ILO Convention No. 107 in 1957 as a tool to protect indigenous populations from oppression and discrimination. It was birthed post World War II out of concern for human rights (Indigenous Foundations, 2012), a first attempt to acknowledge the obligations nation-states have to marginalized indigenous populations. The Convention was ratified by 27 countries, and with the creation of the ILO 169, countries could no longer ratify

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS ILO 107. However, the policies of ILO 107 still apply to those countries that originally ratified

the Convention to this date 18 countries still enforce the Convention (Indigenous Foundations, 2012). As indigenous peoples started to become more visible at the international level in the 1970s and 1980s, ILO 107 came under scrutiny for its integrationalist and assimilationist language and approach (Indigenous Foundations, 2012; Yupsanis, 2010). The convention started to be viewed as a tool that be-littled the culture of the peoples in question (Yupsanis, 2010, p. 435). It was critiqued for being written from a perspective that saw Indigenous cultures as lower on the evolutionary scale than those of European origin (Indigenous Foundations, 2012). For example, Article 12.1 states that, indigenous populations shall not be removed without their free consent from their habitual territories unless the government want to develop said territory for their own purposes (Indigenous Foundations, 2012). With this perspective a top down approach remained in tact, giving priority to the nation-state to exploit indigenous land, natural resources and territories, with a main objective of integrating indigenous populations into the dominant society. Although paternalistic in its approach, ILO 107 was as one of the tools that supported the evolution of discrimination. The evolution of ILO 107 led to a revision that was renamed the Indigenous and Tribal Peoples Convention ILO No. 169 in 1989. To date, fewer countries have ratified the convention. 20 countries have adopted the law that would inform social policy within those nation-states (International Labour Organization guide, 2007). The Convention requires that indigenous and tribal peoples are consulted on issues that affect them. It also requires that these peoples are able to engage in free, prior and informed participation in policy and development processes that affect them (International Labour Organization, 2012). Within the Convention, the International Labour Organization (2012) notes that in many parts of the world [indigenous]

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peoples are unable to enjoy their fundamental human rights to the same degree as the rest of the population of the States within which they live, and that their laws, values, customs and perspectives have often been eroded. This demonstrates the international community recognizing the marginalization that has occurred and the uniqueness of indigenous societies. Some scholars thought the move away from an assimilationist approach deterred some countries from ratifying ILO 169. See figure 1 for an outline of the main concepts that changed between the conventions. Figure 1: Conventions Nos. 107 and 169: Major differences No. 107 Founded on the assumption that Indigenous Tribal Peoples (ITPs) were temporary societies destined to disappear with Modernisation. Reference to Populations Encouraged integration Reference to Peoples Recognition of, and respect for, ethnic and cultural diversity (International Labour Organization, 2012) The distinction between population and peoples was a highly contentious issue about language. Although it appears a matter of semantics, the undercurrent beneath this distinction is a matter of indigenous peoples striving for self-determination to be recognized as equals to non-indigenous peoples. It is fundamental that indigenous peopleshave recognized title to their land, seas, and natural resources [in addition to] the power to control their use and management in a way that they would consider appropriate (Craig, 2007, p. 86). Most No. 169 Founded on the belief that ITPs are permanent societies

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS governments were not willing to accept peoples due to the implication it may have within international law they feared the opportunity for indigenous peoples to succeed beneath international laws and treaties. For example, within the International Covenant on Civil and Political Rights, 1966, the right to self-determination refers to, by virtue of that right [to selfdetermination, all peoples] freely determine their political status and freely pursue their

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economic, social and cultural development (Shulting, 1997, p. 2). Therefore, the compromise made within ILO 169 Article 35 contradicts the application of the term peoples through noting, the application of the provisions of this Convention shall not adversely affect rights and benefits of the peoples concerned pursuant to other Conventions and recommendations, international instruments, treaties, or national laws, awards, custom or agreements (International Labour Organization, 2012). This is a distinct example of western ideology dominating a top down approach to policy. Human authorities take on the responsibility for maintaining order and justice. Of course, authorities often exploit their subordinates for their own benefit while believing they are perfectly just (Haidt, 2012, p. 143). It must be noted that some good came from the replacement of population to peoples because the term aligns more closely to the value of the designation of indigenous peoples as sui generis unique to its own kind. A sui generis system involves an alternative or modified framework to the existing law, governed by fundamentally different principles and mechanisms (Craig, 2007, p. 93). Some scholars even point out that the Convention contains the seeds of potential self-government (Yupsanis, 2010, p. 451). Still far from that reality, there is an emphasis of self-identification and collective rights to ancestral lands within ILO 169.

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS It is argued that the capitalist ideology continues its rein and thread through ILO 169. Most often development projects are based on control, extraction, and exploitation of natural resources, the economic wealth of a nation. By giving control to indigenous peoples under international law, nation-states would risk indigenous communities vetoing a suggested development project, therefore impacting national economies.

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ILO 169 is considered the most advanced international policy that recognizes the rights of indigenous and tribal peoples. However, terminology and statements remain that undermine the integrity and aspirations of indigenous peoples toward self-determination. It was requested the terms control and consent were incorporated into the Convention as to ensure recognition of indigenous peoples rights. Instead, the terms consultation and participation were selected by government and employer representatives to represent the rights of indigenous peoples (Craig, 2007; Shulting, 1997; Yupsanis, 2010). The spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all its provisions were based (Yupsanis, 2010, p. 438). Articles 6 and 7 on consultation and participation are key provisions of Convention No. 169 and the basis for applying to all the others (A Guide to ILO Convention No. 169, 2009, p. 59). Article 6(1)a states that governments consult the peoples concerned, through the appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly (International Labour Organization, 2012), The article continues in 6(2) the consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures (International Labour Organization, 2012). Language often appears vague within these statements, leaving room for interpretation (Jones, 2012; Shulting, 1997;

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS Yupsanis, 2010). For example, the latter part of the previous Article with the objective of achieving agreement or consent to the proposed measures faced some discrepancy with governments. Once again governments were concerned this meant indigenous peoples had the right to veto the measures stated in article 6(1)a. The ILO eased these concerns clarifying that

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the intended meaning of the provision was not that these consultations must necessarily lead to the agreement or consent of the indigenous peoples but merely that they should be conducted on that footing (Yupsanis, 2012, p. 439). To contradict frustration with vague language, the document ILO Convention 169 and the Private Sector: Questions and Answers for IFC Clients, created by the International Finance Corporation (2007) within the World Bank Group, states like most international conventions, its application to States is clear in the language used in Convention 169 (p. 3). The upside of the flexibility within language left room for interpretation intended to accommodate the diversity of contexts within the countries that ratified the Convention. However, this also creates space for obligations of governments to be obscured. It is argued that this vagueness and flexibility throughout the Convention is evidence of the lack of clarity on indigenous land and self-determination rights (Jones, 2012), an example of a failed attempt to accommodate a collective ideology within a western paradigm. Article 7(1) articulates some elements of self determination, the peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives The right to self-determination is qualified within the confines of development yet, Indigenous peoples do not have the right to veto any development policies (Shulting, 1997; International Financing Corporation, 2007). This lack of veto is reinforced within Article 15 and 16; Article 15 giving governments control of exploitation and exploration of sub-surface natural resources with no veto power within the means of indigenous peoples. The final sentence of

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS 16(2) states, the peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities (International Labour Organization, 2012). This statement acknowledges the damages that are likely to occur within the exploration of natural resources,

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disregarding the indigenous worldview of interdependence that degradation of the land leads to degradation of indigenous peoples culture. Davis writes, ethnocide, the destruction of a peoples way of life, issanctioned and endorsed as appropriate development policy. Modernity provides the rationale for disenfranchisement, with the real goal too often being the extraction of natural resourcesfrom territories occupied for generations by indigenous peoples whosepresence [is] an inconvenience (2009, p. 171). Within the book The Plundered Planet, Collier (2011) establishes a connection between poverty and environmental conditions. He calls for an increase in accountable governance of natural assets for the good of all society within a nation-state. Craig (2007) argues for the interconnection between human rights and environmental connection that within a number of human rights treaties, respect for human rights is broadly accepted as a pre-condition for sustainable development and that environmental protection is a pre-condition for the enjoyment of human rights they are interdependent and interrelated (p. 92). The previous statements provide strong evidence for the interrelated systems that impact the livelihoods of people around the world. Not only does the indigenous ideology of interconnetion and interrelation need to be respected, but basic principles and priorities that human rights are grounded in need to be upheld. Article 16(2), (3) and (5) continues to disregard the sociocentric morality expressed by Haidt (2012) within the following statements:

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS (2) Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent.

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Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned. (3) Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist. (5) Persons thus relocated shall be fully compensated for any resulting loss or injury. (International Labour Organization, 2012) Land rights continue to be at the forefront of indigenous peoples demands and remain a controversial topic as governments rely upon a countrys natural resources for prosperity. These rights are important for the preservation and development of the identity of the peoples under consideration (Yupsanis, 2010, p. 441). Although there continues to be discrepancy within ILO 169, it goes much further than ILO 107 through recognizing the special importance of the cultural and spiritual values of indigenous people and their relationship with lands and territories. Article 13(1) calls governments to respect the collective aspects of this relationship. Within that, the convention also requires governments to take the necessary steps to demarcate traditional lands occupied by indigenous peoples, recognizing their rights of ownership and possession of lands. None of these concepts and requirements were included in ILO 107. As the indigenous peoples movement strengthens, the more international bodies are striving to accommodate a collective worldview. The ethics of custody play a stronger role within ILO 169, encouraging nations to take responsibility for the conservation and exploitation

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS of natural resources for the benefit of their citizens (Collier, 2011). Yet there remains a clash between the neoliberal agenda of governments and indigenous worldviews regarding natures

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assets. This conflict demands all stakeholders to be engaged in the development of social policy and good governance. ILO 169 attempts to reconcile the differences between stakeholders, demanding a ratified country to re-establish fair and equal regulations and policies however, the Convention is not inclusive of the private sector and it demands good governance for proper implementation. The discrepancy present is often the more natural resource heavy a country is the less likely it is to sustain democracy through good governance (Collier, 2011).

Implementation of ILO 169 As an international rights based convention aiming to influence policy documents, debates and legal decisions at the regional and international levels, as well as national legislation and policies (International Labour Organization, 2012), the implementation process deems to be challenging. Once a country has ratified the Convention, it becomes legally binding one year later, allowing time for changes to regulations, legislation, constitutions and policies to take place. After that first year, the country that ratified the Convention must provide a succinct report for the ILO and provide a report every five years after that. Many of the constitutional provisions that recognize the rights of indigenous peoples have been inspired by related international standardsConvention 169 [as a prime example] (Courtis, 2011, p. 437). Supervisory bodies made up of ILO constituents, are assigned to specific countries to monitor governments. The ILO is made up of three parties of interest consisting of governments, employers and workers indigenous peoples do not have a formal position within this structure. Neither do they have direct access to the ILO monitoring systems, the supervisory bodies. This

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS is due to defects in the ILO structure (Yupsanis, 2010). Access to the bodies may only be through collaboration with workers organizations within their country. Typically, supervisory bodies work directly with the government (Programme to Promote ILO Convention No. 169,

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2009). This maintains power and autonomy to national governments, leaving the hopes of the indigenous peoples for effective implementation [reliant] on the social awareness and political solidarity of local workers organizations, or [on] the good faith of progressive governments (Yupsanis, 2010, p. 449). The reality of ILO 169 is as a rights based model, implementation is contingent upon the style of politics and elite capture at national and local levels (Jones, 2012, p. 643). Self determination of indigenous peoples is compromised before a country even ratifies the Convention based upon the ILO structure, which does not allow indigenous peoples have communications individually or through unions other than workers or employers associations. Then once a country ratifies the international law, implementation is dependent on good governance of that nation. Almost half the countries that have ratified the ILO 169 are based within Latin America nations who are interested in reform, aiming to support the rights of their large population of indigenous peoples. In addition, these nations have histories of economic instability, corruption, and undemocratic rule. These histories contribute to the complex process of change that is far from complete, however, a step in the right direction. It must be acknowledged that there are some pre-conditions within a country that are necessary for the Convention to take root. On a positive note, the essence to a rights based approach is the call against injustice. An international Convention for Indigenous Peoples Rights is a tool to apply against oppressive forces (Jones, 2011). Therefore, starting with the Conventions influence [being] reflected in

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS the inspirational function it played in the constitutional and legal reforms related to indigenous peoples in the [Latin American] region (Courtis, 2011, p. 487). Many policies have been adopting the inclusive language within ILO 169 (self identification, traditional territories, autonomy, consultation, etc), slowing beginning to shift policy norms within nations. In

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addition, the ILO 169 stands up in courts as an international law, often over riding national laws and policies if they are in conflict with the Convention. The following section of the paper is a case study within Ecuador. It provides evidence of challenges with implementation of ILO 169 discussed in the previous paragraphs. In addition, the Ecuadorian case study sheds light on positive outcomes the Convention supports.

Case Study: Ecuador Situated in Latin America, Ecuador has over 1.5 million indigenous peoples representing a portion of over 13 million inhabitants with 14 different indigenous nationalities (IWGIA, 2012). In addition, it has the most biodiversity per square kilometer of any nation, home to the Galapagos Islands (Wikipedia, 2012). With an abundance of natural resources, state ownership of sub-surface minerals, and an indigenous movement rising in strength that is suffering increasing persecution from the state the nation has complex dynamics to contend with (International Work Group for Indigenous Affairs, 2012). Ecuador ratified ILO 169 in 1998. In September 2008 a new constitution was passed in which the government recognized indigenous rights within a plurinational state. Article 1 of the Ecuadorian Constitution stipulates that, Ecuador is a constitutional state of law and justice, it is social, democratic, sovereign, independent, unitary, intercultural, plurinational and secular. In the specific case of indigenous peoples, participation is a

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right that is exercised ...through their representatives in the official law-making bodies, by defining public policies that are of concern to them, and in the design of and decisionmaking for their priorities in the States plans and projects (Art. 57(16)). (International Work Group for Indigenous Affairs, 2011, p. 1) Although the constitution recognizes the coexistence of different peoples, cultures, and worldviews, indigenous peoples asserting their voice within policies comes up against difficulty. Tension, conflict, and a strong division is still present between the state and indigenous peoples of Ecuador. For example, ten years ago the Ecuadorian government authorized an oil company to enter Sarayaku land to explore and exploit the ancestral territory for oil. There was no prior consultation with communities or consideration regarding the impact on the peoples traditions and culture. The Sarayaku started campaigning for justice and demanding consultation. Over the last 10 years, this campaign led representatives of the community and the state to the Interamerican Court of Human Rights (ICHR) (Gualinga, 2012). The Kichwa people of Sarayaku took the state to court based on an illegal grant for an oil concession on their ancestral lands on which there had been no prior consultation (International Work Group for Indigenous Affairs, 2012; Amazon Watch, 2012). It was noted that the oil company protected their exploration with armed forces, threatening and intimidating community members; even though ILO 169 is grounded in the practice of consultation and participation, especially prior to an exploration or exploitation of natural resources; even though the countrys Constitution acknowledges being a plurinational state with indigenous peoples playing a role in national decision-making. Weak governance led state officials to ignore and abandon these international and national laws and policies. Gil argues that all social problems are the result of a flawed social policy; thus, the policy, not the problem, needs to be redressed (Delaney,

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Graham, & Swift, 2009, p. 179). Within a corrupt state that has limited accountability, is a rights based international law appropriate as the measure that influences national social policy? The outcome of this human rights court case was victorious for the Sarayaku. The Ecuadorian government for the first time in history acknowledged responsibility for illegally licensing an oil company to do business on indigenous territory without the communities consent; andthe ICHR ruled the government must consult with indigenous communities prior to such enterprises and pay for physical and moral damages to the community. (Amazon Watch, 2012) The acknowledgement of moral damages to the community implies the government operated from a corrupt, disillusioned value system, functioning outside of the guiding principles operating within society. It is evident that within a complex and dynamic society with sectors existing within different ideologies, agreeing upon a set of values that govern polices is a challenge. However, perhaps there are additional concepts to consider when generating international and national social policy that embraces indigenous peoples collective worldview?

Recommendations Over the years the ILO has built up an extensive understanding of indigenous issues and rights. With this depth of knowledge there exists a strong capacity to contribute to indigenous rights. ILO 169 is a step in a positive direction and was a building block for the Indigenous Declaration of Human Rights however, there is still much room for improvement. The following headings are recommendations for International Labour Organization Convention No. 169.

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS ILO Structure 1. Reform the ILO structure to be inclusive of indigenous peoples as key contributors to conventions working alongside governments, workers and employers. o Including indigenous peoples in the ILO structure would strengthen WEIRD peoples understanding of indigenous ideologies and worldviews. This would contribute to creating conventions that are more holistic and inclusive for governments and indigenous peoples, therefore leading to the creation of inclusive social policies within nation-states.

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Implementation 2. The most contentious issues within ILO 169 are around territory, land rights and natural resources. Within ILO 169, governments are given responsibility to ensure consultation takes place prior to development however, corporations are often doing the exploration. As major stakeholders, corporations have no accountability in the consultation process. Corporate responsibility needs to be included in ILO 169, enforcing accountability. 3. ILO 169 is a top down approach. To ensure that all stakeholders are participants in the process of

Supervisory Bodies 4. Include indigenous peoples within the supervisory bodies. This would support the supervisory body to critique and inquire within nations applying a western and indigenous lens. In addition, including indigenous peoples in the supervisory bodies

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS would generate advice and resources that are inclusive of western and indigenous paradigms.

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5. Allow indigenous individuals, communities, and unions access to the supervisory bodies, to generate complaints and produce reports. This change would invite a more inclusive voice and perspective on different ratified nations.

Integration of Ecological Concepts 6. Re-evaluate the vague language applied to ILO 169 to be more inclusive of selfdetermination for indigenous peoples and oriented towards ecologically sustainable development. Legal frameworks for sustainable development have been drafted at the international level (Declaration of Principles on Human Rights and the Environment, Draft Covenant on Environment and Development). Expand ideology grounding ILO 169 to be inclusive of a sustainability perspective. Therefore, countries who ratify this Convention would need to incorporate sustainable lens, language, and implementation of social policy (Craig, 2007). It is understood that environmental protection is a precondition for human rights. 7. Traditional Resource Rights (TRR) was a concept developed in the 1990s. It is an example of sui generis in application. The concept seeks to describe rights in the context of bundles existing to protect traditional knowledge and resources. This concept reaches beyond the inappropriate term property applied within ILO 169. Within many traditional societies property is intangible, land belonging to no human being. TRR could be applied locally, nationally, and internationally as a set of principles to support dialog between indigenous communities and other stakeholders, exposing opportunities for

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partnerships that may be mutually beneficial and sustainable. This would be a valuable concept to research further and potentially incorporate into ILO 169 (Craig, 2007). Recommendations for ILO 169 invite further investment in emphasizing the improvement of social policy for the common good rather than public or private, aiming to ensure implementation and accountability is inclusive of all marginalized voices.

Conclusion A rights based approach makes peoples needs a right. It then aims to promote peoples knowledge about their rights, leading to the development of legislation and policies to make peoples rights a reality. This paper explored ILO 169, a rights based approach. It questioned if a top down, rights oriented approach was the most appropriate way to ensure the protection of land and sustainability of indigenous livelihoods. The ILO 169 is a step in a positive direction for indigenous rights, supporting the development of inclusive national social policies and legislation. It does however, remain a paternalistic document offering the nation state ultimate power over these marginalized peoples, land and natural resources. Without direct access to ILO Supervisory Bodies and no veto power for decisions made by governments, nation-states continue to take advantage of indigenous peoples, investing in the economic interests of the country. Nature continues to be exploited solely for prosperity - the neoliberal agenda reins. There is limited consideration for the severe impact exploitation of natural resources has on the ethnosphere - a descriptive word for the sum total of the worlds cultures, another perspective of global resources (Davis, 2009). ILO 169 is regarded as the floor of indigenous rights, a foundation for declarations to come. It continues to have an influence over national social policy within the countries that have

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ratified it, yet there is much opportunity to evolve a deeper integration of indigenous worldviews into the narrative and implementation. The Convention remains a valuable rallying tool to use against injustices around the world.

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Amazon Watch. (2012). A Kichwa victory against big oil and government in new documentary. Retrieved November 6, 2012 from http://amazonwatch.org/news/2012/1010-a-kichwavictory-against-big-oil-and-government-in-new-documentary Collier, P. (2011). The Plundered Planet: Why we must and how we can Manage Nature for Global Prosperity. New York, USA: Oxford University Press Courtis, C. (2011). Notes on the implementation by Latin American courts of the ILO convention 169 on indigenous peoples, 18, 433-460, doi: 10.1163/157181111X598345 Craig, D (2007). Biological resources, intellectual property rights and international human rights: Impacts on Indigenous and local communities. Accessing and Sharing the Benefits of the Genomics Revolution, The International Library of Environmental, Agricultural and Food Ethics, 11(2), 81-110. Doi: 10.1007/978-1-4020-5822-6_5 Davis, W. (2009). The wayfinders: Why ancient wisdom matters in the modern world. Toronto, Canada: House of Anansi Press. Delany, R., Graham, J., & Swift, K. (2012). Canadian Social Policy: An Introduction. Pearson Canada Inc: Toronto (fourth edition) Gualinga, E. (2012). Children of the jaguar. United Kingdom: Amnesty International. Retrieved October 8, 2012 from causes.com/amazonwatchlive. Gutmann, A., & Taylor, C. (1994). Multiculturalism: Examining the Politics of Recognition. Princeton University Press: Ewing, New Jersey. Haidt, J. (2012). Righteous Mind: Why Good People Are Divided by Politics and Religion. Pantheon Books: New York, USA. Indigenous Foundations. (2012). ILO convention 107. Retrieved October 31, 2012 from http://indigenousfoundations.arts.ubc.ca/home/global-indigenous-issues/ilo-convention107.html. Indigenous Foundations. (2012). ILO convention 169. Retrieved October 31, 2012 from http://indigenousfoundations.arts.ubc.ca/home/global-indigenous-issues/ilo-convention169.html. International Labour Organization. Convention No. 107. Retrieved October 20, 2012 from http://www.ilo.org/indigenous/Conventions/no107/lang--en/index.htm. International Labour Organization. Convention No. 169. Retrieved October 20, 2012 from http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm.

ILO 169 AND INDIGENOUS PEOPLES LIVELIHOODS

26

International Work Group for Indigenous Affairs. 2011 yearbook article. Retrieved November 1, 2012 from http://www.iwgia.org/regions/latin-america/ecuador. International Work Group for Indigenous Affairs. 2012 yearbook article. Retrieved November 1, 2012 from http://www.iwgia.org/regions/latin-america/ecuador. John Humphreys Centre for Peace and Human Rights. (2011). Facilitator Training Program Manual. Edmonton, AB. Jones, P. (2012). Powering up the people? The politics of indigenous rights implementation: International Labour Organization 169 and hydroelectric power in Nepal. The International Journal of Human Rights, 16(4), 624-647. Programme to Promote ILO Convention No. 169 (PRO 169). (2009) Indigenous and Tribal Peoples Rights in Practice: A Guide to ILO Convention No. 169. International International Labour Organization, Labour Standards Department. Shulting, G. (1997). ILO convention 169. Can it help? The Journal of the South and Meso American Indian Rights Center (SAIIC), 10(4). Retrieved October 9, 2012 from http://saiic.nativeweb.org/ayn/schulting.html. Wikipedia. (2012). Ecuador. Retrieved November 5, 2012 from http://en.wikipedia.org/wiki/Ecuador. Yupsanis, A. (2010). ILO convention no. 169 concerning indigenous and tribal peoples in independent countries 19892009: An overview. Nordic Journal of International Law, 79, 433-456.