Indigenous Peoples’ Rights in Constitutions Assessment Tool Indigenous Peoples’ Rights in Constitutions Assessment Tool Amanda Cats-Baril © 2020 International Institute for Democracy and Electoral Assistance International IDEA Strömsborg SE–103 34 Stockholm Sweden Tel: +46 8 698 37 00 Email: [email protected] Website: <https://www.idea.int> The electronic version of this publication, except the images, is available under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 (CC BY-NC-SA 3.0) licence. You are free to copy, distribute and transmit the publication as well as to remix and adapt it provided it is only for non- commercial purposes, that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information on this licence see http://creativecommons.org/ licenses/by-nc-sa/3.0/. International IDEA publications are independent of specific national or political interests. The views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. Graphic and cover design: Richard van Rooijen (based on a concept developed by KSB Design) Cover image and artwork: Ancestors © Sarrita King Sarrita’s Ancestors paintings are layered with dots. Markings made on the land over thousands of years can be seen entangled with patterns covering the land today, such as sand hills, flora and paths made by humans and animals. Beneath the land are the waterways which have been virtually constant over time feeding the land, the flora, fauna and humans. These are the same waterways that supplied our ancestors which are now one with the land. ISBN: 978-91-7671-324-2(PDF) DOI: <https://doi.org/10.31752/idea.2020.37> Contents Foreword ....................................................................................................................................... 4 Preface .......................................................................................................................................... 5 Acknowledgements ....................................................................................................................... 6 Introduction .................................................................................................................................. 7 1. Assessing indigenous peoples’ rights in constitutions ............................................................. 8 1.1. Why include indigenous peoples’ rights in the constitution? ...................................................................9 1.2. Why and when is a constitution assessment tool on indigenous peoples’ rights helpful? ..................10 2. How to use the Assessment Tool ............................................................................................ 13 2.1. Getting started ................................................................................................................................................14 2.2. Structure of the Assessment Tool ...............................................................................................................14 2.3. Important considerations for users..............................................................................................................16 2.4. How to use the completed assessment .......................................................................................................18 3. Key terms and concepts .......................................................................................................... 20 4. Indigenous Peoples’ Rights in Constitutions Assessment Tool .............................................. 34 I. Recognition and citizenship ..............................................................................................................................38 II. Right to equality and anti-discrimination .....................................................................................................49 III. Foundations for indigenous peoples’ rights ...............................................................................................59 IV. Autonomy: Agreement-making and self-government ..............................................................................75 V. Consultation, political participation and representation ............................................................................92 VI. Land, territories and natural resources rights ............................................................................................113 VII. Right to culture, and social and economic development ......................................................................131 VIII. Protecting and promoting indigenous peoples’ rights .........................................................................160 References and further reading ...................................................................................................191 Annexes ....................................................................................................................................... 202 Annex 1. ILO Convention 169: Indigenous and tribal peoples convention, 1989 .....................................203 Annex 2. United Nations Declaration on the Rights of Indigenous Peoples .............................................213 Annex 3. List of questions ..................................................................................................................................222 About the author ......................................................................................................................... 224 About the artist ........................................................................................................................... 225 About International IDEA .......................................................................................................... 226 3 Foreword The International Working Group for Indigenous Affairs (IWGIA) works for a world where indigenous peoples’ voices are heard and their rights are implemented. Since 1968, IWGIA has worked through partnerships with indigenous organizations and international institutions to promote recognition and implementation of the rights of indigenous peoples. The Indigenous Peoples' Rights in Constitutions Assessment Tool will meaningfully enable this work by assisting indigenous communities and advocates, as well as allies in the promotion of indigenous rights, to understand the scope and possibilities of promoting international rights and standards through domestic legal recognition. Through its partnerships and work on capacity-building and advocacy, as well as the yearly documentation and research for compiling The Indigenous World publication, IWGIA is well aware of the import of constitutions for protecting indigenous peoples’ rights. As a pioneer in defining the sphere of indigenous rights, IWGIA notes the importance of internationally protected rights and standards, but also that to realize true empowerment, equality and access to land and other resources for indigenous peoples, it is critical to protect their rights domestically, in the countries where they reside. Yet before this Assessment Tool, there was no collected or holistic inventory of constitutional practice for protecting indigenous peoples’ rights. To fully enjoy their rights, including to participate in and be consulted on decisions that affect their lives, IWGIA believes that indigenous peoples need platforms that meaningfully operationalize principles and rights such as those of self-determination and autonomy. These, as well as many other indigenous peoples’ issues, are complex and often difficult to design and advocate for. This Assessment Tool will help indigenous peoples and other users not only to document the status of their rights in the country in which they reside, but also to engage in evidence-based advocacy for enhancements to the mechanisms and rights in practice. By documenting the incredible scope and diversity in global comparative practice—spanning constitutions but also laws, peace agreements and innovative institutions—the Indigenous Peoples' Rights in Constitutions Assessment Tool supports international and domestic advocacy efforts to help governments and peoples understand good practice and experience in protecting indigenous peoples’ rights. The Assessment Tool provides a nuanced user-friendly methodology for approaching complex issues that are often overly politicized, allowing for systematic and evidence-based discussion of these critical and sensitive issues. Furthermore, the format of the Assessment Tool makes these issues accessible to a variety of users with different capacities and perspectives. It also builds clear links between international rights and standards and options for incorporating these into domestic legal frameworks and government structures. In this way, the Assessment Tool can help governments and international experts and organizations understand and advise on these options. Recognition of indigenous peoples’ rights has become increasingly imperative as crises such as climate change and pandemics highlight the continued vulnerability of indigenous peoples and the impact that systemic marginalization and dispossession continue to have on their lives and communities. At a time when it is more important than ever to enable innovative, sustainable and effective protection and promotion of indigenous peoples’ rights, International IDEA’s Assessment Tool provides all of us dedicated