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| Distr. GENERAL E/CN.4/Sub.2/1999/20 22 June 1999
Original: ENGLISH |
Study on treaties, agreements and other constructive arrangements
between States and indigenous populations
Final report by Miguel Alfonso Martínez, Special Rapporteur
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1. In volume V (Conclusions, proposals and recommendations) (1) of his monumental Study of the Problem of Discrimination against Indigenous Populations, Mr. Martínez Cobo stressed the paramount importance for indigenous peoples and nations in various countries and regions of the world of the treaties concluded with present nation-States or with the countries acting as colonial administering Powers at the time in question.
2. He concluded that a thorough and careful study should be made of various areas covered by the provisions of such treaties and agreements, the official force of such provisions at present, the observance, or lack of observance, of such provisions, and the consequences all that might entail for indigenous peoples and nations parties to such treaties or agreements.
3. He further noted that in preparing such a study, account must necessarily be taken of the points of view of all parties involved, a task requiring the examination of a large volume of documentation. For obvious reasons, that was an undertaking that could not be carried out within the framework of his own study.
4. He therefore recommended that a thorough study devoted exclusively to that subject should be undertaken in the light of existing principles and norms in the field and the opinions and data submitted by all interested parties, primarily the Governments and indigenous nations and peoples that had signed and ratified treaties or agreements. He believed that only a thorough study could help determine with the necessary accuracy the present status of international agreements involving indigenous peoples. (2)
5. Taking up an initiative of its Working Group on Indigenous Populations, (3) at its thirty-ninth session, the Sub-Commission on Prevention of Discrimination and Protection of Minorities acted upon Mr. Martínez Cobo's recommendation by adopting resolution 1987/17 of 2 September 1987, entitled "Study on treaties concluded between indigenous peoples and States". In taking such action, the Sub-Commission was consistent with its resolution 1984/35 A of 30 August 1984, in which it had decided to consider Mr. Martínez Cobo's conclusions, proposals and recommendations as an appropriate source for its future work on the question of discrimination against indigenous populations and for the work of its Working Group on Indigenous Populations.
6. In its resolution 1987/17, the Sub-Commission requested Mr. Miguel Alfonso Martínez to prepare, on the basis of the opinions and data in Mr. Martínez Cobo's report and the views expressed on the issue in the Working Group and in the Sub-Commission, a document analysing the general outline of such a study and the juridical, bibliographical and other information sources on which such a study should be based, and to submit the document to the Sub-Commission for consideration at its fortieth session.
7. The Sub-Commission also recommended that the Commission on Human Rights recommend, in turn, that the Economic and Social Council authorize the Sub-Commission to appoint Mr. Alfonso Martínez as Special Rapporteur with the mandate of preparing such a study, and to request the Special Rapporteur to present a preliminary report to the Sub-Commission at its forty-first session (1989). The recommendations contained in resolution 1987/17 were submitted to the Commission on Human Rights for consideration at its forty-fourth session (1988).
8. At its forty-fourth session, the Commission adopted resolution 1988/56, in which a number of guidelines on the matter were established. These would eventually become the terms of reference of the Special Rapporteur's mandate for the present study.
9. It should be noted that in adopting resolution 1988/56, the Commission broadened to a considerable extent the scope of the study originally envisaged by the Sub-Commission in its resolution 1987/17, by recommending that the Economic and Social Council authorize the appointment of Mr. Alfonso Martínez as Special Rapporteur of the Sub-Commission with the mandate of preparing "an outline on the possible purposes, scope and sources of a study to be conducted on the potential utility of treaties, agreements and other constructive arrangements between indigenous populations and Governments for the purpose of ensuring the promotion and protection of the human rights and fundamental freedoms of indigenous populations" (Emphasis added).
10. However, in resolution 1988/56 the Commission only authorized the Special Rapporteur to prepare and submit to the Working Group an outline of a possible study, not to undertake the study proper, as recommended by the Sub-Commission. In fact, it withheld its authorization, at least until 1989, in order to decide on the appropriateness of commissioning such a study by the Special Rapporteur.
11. Commission resolution 1988/56 was endorsed on 27 May 1988 by the Economic and Social Council in its decision 1988/134.
12. The Special Rapporteur submitted the requested outline (4) to the Working Group and the Sub-Commission later in 1988. Both bodies endorsed that document. In addition, in its resolution 1988/20 of 1 September 1988, the Sub-Commission requested the Commission and the Economic and Social Council to finally authorize the Special Rapporteur to undertake the study referred to in Commission resolution 1988/56.
13. At its forty-fifth session, the Commission adopted, without either a debate or a vote, resolution 1989/41 of 6 March 1989, in which it endorsed all the recommendations submitted on the matter by the Sub-Commission in its resolution 1988/20. They were thus submitted to the Economic and Social Council for approval at its 1989 spring session.
14. Finally, the Council, in its resolution 1989/77 of 24 May 1989, confirmed the appointment of Mr. Alfonso Martínez as Special Rapporteur and authorized him to carry out the study.
15. Since that date, the Special Rapporteur has submitted to the Working Group and the Sub-Commission a preliminary report, (5) and three progress reports. (6)
16. At its forty-ninth session, the Sub-Commission, in its decision 1997/110 of 22 August 1997, urged the Special Rapporteur to submit his final report in due time - preferably before the end of 1997 - so as to allow it to be discussed by the Working Group at its sixteenth session and by the Sub-Commission at its fiftieth session, in 1998. The present final report is submitted to the consideration of both bodies, pursuant to the above-mentioned decision of the Sub-Commission.
17. As to the contents of this final report, it should be recalled, first, that the Special Rapporteur suggested from the start of his mandate a three-part structure for the study as a whole:
(i) In the first part, the origins of the practice of concluding treaties, agreements and other constructive arrangements between indigenous peoples and States, that is, the role of treaties in the history of European expansion overseas, were to be examined.
(ii) The second part was to be devoted to the contemporary significance of such instruments, including questions regarding the succession of States, national recognition of treaties and the views of indigenous peoples on these issues.
(iii) The third part would address the potential value of all those instruments as the basis for governing the future relationships between indigenous peoples and States. Both the form and substance of such instruments were to be considered in the final stage of the study, as well as possible mechanisms to be institutionalized in the future to secure their implementation. (7)
18. This final part, obviously, had to be undertaken in the light of the actual situations in which indigenous peoples find themselves coexisting today with other, non-indigenous segments of society in many States. It is the precarious nature of their existence almost everywhere that is today provoking - as it did when Martínez Cobo's study was commissioned and completed - growing concern in the international community.
19. The Special Rapporteur's research and analysis largely follow his initial plan as far as the first two parts of the study are concerned.
20. At this final stage of the Special Rapporteur's work on the study, particular attention will be given to the potential value of all possible ways and means of achieving a new relationship between the indigenous and non-indigenous sectors in multi-national societies through adequate forward-looking, innovative mechanisms that would facilitate conflict resolution when needed.
21. The fact that the Special Rapporteur has been working on this study for nine years and that the present, final report, should be able to stand on its own with respect to publication by the United Nations has made certain inclusions necessary. The Special Rapporteur has therefore briefly recapitulated here the most important provisional conclusions advanced in previous progress reports, as well as the initial (or modified) reasoning behind them. He has also referred to key cases or general situations reviewed fully in those reports. Without this background it would be difficult to grasp fully the sense and possible merit of the conclusions and recommendations offered here.
22. Consequently, chapter I deals with four main topics: the process of selection (or elimination) of cases relevant to this study; treaty and treaty-making concepts; the importance of fully understanding the evolution of the indigenous/non-indigenous relationship and its present status and defining and differentiating between the categories "indigenous peoples" and "minorities". In chapter II, the Special Rapporteur offers his views on the three juridical situations selected for their pertinence to the goals of this study, focusing on the individual cases/situations selected for review in consideration of their juridical/institutional development. Chapter III describes the overall process of domestication of indigenous issues in its various manifestations during different stages and links it to the present situation of indigenous societies. Finally, in chapter IV, the Special Rapporteur brings all the elements included in previous chapters together, to offer his conclusions and recommendations for what he considers might be a constructive future approach.
23. Lastly, a final remark about the contents of this report. The Special Rapporteur is fully aware that he - and only he - is ultimately responsible for the content of the conclusions and recommendations of the present study. However, he is also aware that all human endeavour may contain flaws and shortcomings, and thus can benefit from constructive criticism.
24. In this context, it cannot be overemphasized that in many aspects and cases reviewed, the final result of these long years of work, as reflected in the present document, is based on the research (including field work), the personal and professional experience, and, in particular, the views on the available sources that have been developed by two persons only: the Special Rapporteur himself and his consultant, Dr. Isabelle Schulte-Tenckhoff - to whom he once again expresses his gratitude for her invaluable collaboration.
25. Hence, the Special Rapporteur will highly welcome all critical opinions - not only from his colleagues but also, in particular, from those indigenous peoples and Governments which did not respond to his questionnaire - that may be proffered during the debate that will be held on the subject of this final report at the forthcoming 1999 sessions of both the Working Group and the Sub-Commission. These contributions will be duly taken into account for potential utilization as additional elements of judgement to be incorporated in this report before it becomes an official United Nations publication.
26. In this final report, the Special Rapporteur wishes to express gratitude to all the Governments that responded to the questionnaire sent them in 1991 and 1992; in particular those of Australia and Canada for the thoroughness with which they did so and the valuable documentation provided either at their own initiative or upon request. He also thanks the Governments of Canada, Chile, Fiji, Guatemala, New Zealand, Spain and the United States of America, for granting facilities for field research or for participation in activities relating to indigenous questions in their respective countries.
27. The careful attention and efficiency with which the New Zealand authorities prepared and coordinated the Special Rapporteur's programme of activities during his official working visit to that country in May 1997, and the fact that some of its highest authorities (for example, the Ministers of Foreign Affairs and Justice) were gracious enough to find time to receive him personally and discuss issues affecting the Maaori people, merit his special recognition.
28. This study could not have been concluded without the cooperation of many indigenous peoples, organizations and authorities, who have offered the Special Rapporteur, not only their invaluable contributions (oral and written testimony, documentation and much needed logistics of the most varied kind), but also constant encouragement in his work.
29. Even at the risk of possible regrettable omissions, it is fitting to mention here the support received from the following indigenous organizations and institutional bodies: American Indian Law Alliance, Four Nations of Hobbema, Fund of the Four Directions, Grand Council of the Haudenosaunee Confederacy, Consejo de Todas las Tierras de la Nación Mapuche, Grand Council of the Crees (of Québec), Fundación Rigoberta Menchú, International Indian Treaty Council, Assembly of First Nations (Canada), Western Shoshone National Council (United States), Maaori Legal Services, Teton Sioux Treaty Council, Ka'laui Hawaii, International Organization of Indigenous Resource Development, OXFAM and the Information and Documentation Centre on Indigenous Peoples (DOCIP) (Geneva).
30. The Special Rapporteur wishes to express his gratitude also to the authorities (elders, lonkos, Grand Chiefs and Chiefs, headmen, councillors and advisers) of diverse indigenous nations/peoples or their organizations, among them Rigoberta Menchú Tum (Maya Nation), the late Oren Lyons (Onondaga Nation), Matthew Coon Come and Ted Moses (Crees [of Québec]), Tony Blackfeather (Teton Sioux/Lakota Nation), J. Wilton Littlechild (Four Nations of Hobbema/Canada), Domingo Cayuquo, Manuel Antilao, Jorge Pichinual, Juana Santander and Aucan Huilcamán (Mapuche Nation), Ovide Mercredi (Assembly of First Nations/Canada), Cherrilene Steinhauer and Carl Queen (Saddle Lake First Nation/Canada), Wallace Fox (Onion Lake First Nation/Canada), Daniel Sansfrere, Michael Nadli, Felix Lockhart, Pat Martel, Jonas Sangri, Rene Lamothe, Gerald Antoine and Francois Paulette (Dene Nation/Canada), Sharon Venne (Lubicon Cree Nation-Joseph Bighead First Nation-Treaty Six Nations/Canada), Juan León (Maya Nation), the late Ingrid Washinawatok (Fund of the Four Directions), Ken Deer (Mohawk Nation), Lázaro Pari (Aymará Nation), Bill Means, Antonio González, Jimbo Simmons and Andrea Carmen (IITC), Mililani Trask (Hawaii), Al Lameman (Beaver Lake Tribal Administration), Kent Lebsock (American Indian Law Alliance), R. Condorí (CISA), Pauline Tiangora, Naniko, Aroha Pareake Meade, Moana Jackson, Dr. Margaret Mutu, Sir Tipene O'Regan, Sir R.T. Mahuta, Moana Erickson and Shane Solomon (Aotearoa/New Zealand), and Leif Dunfield (Saami Nation). All of them gave the Special Rapporteur most valuable information and insights on their respective peoples/nations and organizations.
31. The Special Rapporteur cannot leave unmentioned his gratitude to other indigenous and non-indigenous individuals - all with recognized authority in diverse aspects of the indigenous problematique and active, in general, in United Nations circles - who have lent their knowledge, practical experience, and/or incisive, constructive criticism to the Special Rapporteur's work.
32. Gudmundur Alfredsson (both in his past functions in the Centre for Human Rights and in his capacity as a scholar specializing in this question), Augusto Willemsen Díaz, Chief Justice E. Durie (of the Waitangi Tribunal), Mario Ibarra, Jacqueline Duroure, the late Andrew Gray, Paul Coe, Renate Dominick, Robert Epstein, Florencia Roulet, Sir Paul Reeves, Anthony Simpson, Alberto Saldamando, and Professors Vine Deloria, Héctor Díaz Polanco, Michael Jackson, Gaston Lyon, Glenn Morris, C.M. Eya Nchama, Douglas Sanders, Mason Durie, Jim Anaya, José Bengoa (his colleague in the Sub-Commission) and the late Howard Berman merit special thanks for their worthy academic contributions. None of them, of course, bear any responsibility whatsoever for the possible flaws in the various progress reports or in this final report of the study.
33. Last but not least, the Special Rapporteur expresses heartfelt gratitude for the specialized assistance, patience and logistical cooperation provided by all those who have served on the minuscule unit/task force to which the Centre for Human Rights or the Office of the High Commissioner for Human Rights has assigned responsibility for indigenous affairs. The diligence and the extreme professionalism with which they so effectively fulfilled their functions in terms of this study (sometimes under extremely trying conditions) have been simply exemplary. In this regard, their head, Mr. Julian Burger and his highly efficient colleague, Ms. Miriam Zapata have, over long years, earned the total respect of the Special Rapporteur.
34. Given the vast geographical, temporal and juridical scope of the study, (8) the Special Rapporteur decided from the start to confine detailed analysis to a limited, representative number of case studies ordered according to five juridical situations: (i) treaties concluded between States and indigenous peoples; (ii) agreements made between States or other entities and indigenous peoples; (iii) other constructive arrangements arrived at with the participation of the indigenous peoples concerned; (iv) treaties concluded between States containing provisions affecting indigenous peoples as third parties; and (v) situations involving indigenous peoples who are not parties to, or the subject of any of the above-mentioned instruments. (9)
35. It must be recalled that from the geographical viewpoint, the Special Rapporteur has viewed his mandate as universal, dealing with "any part of the world in which the historical or contemporary existence of treaties, agreements and other constructive arrangements is confirmed, or where they may still come into being in the future through a process of negotiation and cooperation". (10)
36. Consequently, an extensive array of cases from all regions of the world was examined relating to all five juridical situations listed above, including cases in the United States and Canada (Haudenosaunee, Mikmaq, the so-called Five Civilized Tribes, Shoshone, Lakota, the indigenous signatories of Treaty No. Six, the James Bay Cree [of Québec], the indigenous nations of British Columbia and California, the Lubicon Cree), the Pacific (Maaori, Hawaii, French Polynesia), Latin America (Kuna Yala, Mapuche, Yanomami, Maya), Aborigines and Islanders of Australia, the Greenland Home Rule, and some African and Asian cases (Burma/Myanmar, the role of European charter companies in South Asia and West Africa, the San of Botswana, the Ainu of Japan and the indigenous peoples of Siberia).
37. It is worth recalling in this connection that some choices were made by the Special Rapporteur concerning the guidelines adopted for the research as a whole. (11) Those guidelines have been duly taken into account throughout his work.
38. In the course of his work and in light of the numerous cases/situations reviewed, the Special Rapporteur was led to reconsider the relevance for the final report of the five juridical categories listed at the beginning of this chapter
39. Two of those juridical categories, namely, agreements, insofar as these may differ fundamentally from treaties, and treaties between non-indigenous powers affecting indigenous peoples as third parties, will have limited impact on the conclusions and recommendations to be formulated in the present final report.
40. Regarding, first of all, the question of agreements, the Special Rapporteur has already stressed the need for a casuistic approach, since "the decision of the parties to a legal instrument to designate it as an 'agreement' does not necessarily mean that its legal nature differs in any way from those formally denominated as 'treaties'". (12) This reasoning is consistent with the legal tradition codified into contemporary international law by the Vienna Convention on the Law of Treaties. (13)
41. The Special Rapporteur therefore selected certain factors to be taken into account in determining which of the instruments analysed should be viewed as a "treaty", and which was to be considered an "agreement". These factors are: who the parties to the instrument are, the circumstances surrounding its conclusion, and its subject matter. (14)
42. The factors in question were applied in the analysis of two particular instruments, namely, the Panglong Agreement of 12 February 1947 (Burma/Myanmar), later forgone by the State party; (15) and the agreement of 22 August 1788 between Captain Taylor on behalf of the British Crown and the Chiefs of Sierra Leone, which does not constitute an instrument of international law relevant to the study. (16)
43. Some elements relating to other, present-day cases or situations labelled as "agreements" - particularly in the Canadian context - will be reviewed in chapter III of this report.
44. Secondly, regarding the relevance, for this study, of bilateral and multilateral treaties binding non-indigenous powers but affecting indigenous peoples as third parties, it should be stressed that lack of time and resources have prevented the Special Rapporteur from ascertaining in situ the practical import of those instruments for indigenous peoples and from further examining the existing documentation on the instruments.
45. Nonetheless, at least one instrument already considered in the first progress report (17) clearly continues to be relevant, namely the so-called Lapp Codicil to the 1751 border treaty between Sweden/Finland and Norway/Denmark. This Codicil has never been abrogated and continues to be the subject of legal interpretation regarding Saami rights within the context of bilateral (Sweden/Norway) negotiations.
46. In this connection, it is worth underscoring the role of the Saami parliament in both Norway and Sweden – but especially in Norway where it seems to have a stronger impact than in Sweden - and their potential contribution to the interpretation of the Codicil.
47. In addition, regarding specifically the 1989 ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, it remains to be seen to what extent indigenous peoples have any direct access to (or possible effective input into) the processes leading to the ratification of this Convention by the States in which they live. It is worth noting that to date only a very limited number of those States have actually ratified this instrument.
48. Although support for the Convention has been expressed by a number of indigenous organizations (for example, the Inuit Circumpolar Conference, the National Indian Youth Council and the Saami Council), that support is far from being unanimous. The opposition to it by a number of indigenous organizations in the Canadian context is proof of this. In Canada, for instance, not all indigenous peoples – nor all sectors of the legal establishment - support ratification of the Convention, since its provisions appear to lag behind current national standards. In other countries, where existing legislation regarding indigenous peoples – or the indigenous labour force, for that matter - is less advanced, indigenous peoples may take a different stand. Yet again, a case-by-case approach is called for.
49. It follows that the issue of treaties affecting indigenous peoples as third parties may continue to be relevant insofar as they remain in force and insofar as indigenous peoples already participate - or may in the future - in the implementation of their provisions. Among the 10 instruments previously considered for analysis, (18) apart from the Lapp Codicil, several others would warrant further scrutiny, among them the 1794 Jay Treaty and the 1848 Treaty of Guadalupe-Hidalgo, both of apparent special significance for the indigenous nations along the borders of the United States with Canada and Mexico respectively.
50. Consequently, the conclusions and recommendations to be offered in the present report will mainly refer to three of the five juridical situations originally identified: (i) where there is proof of international treaties/agreements between indigenous peoples and States, (ii) where there are no specific bilateral legal instruments to govern relations between indigenous peoples and States; and (iii) situations relating to the question of "other constructive arrangements".
51. As to the role of these constructive arrangements, the Special Rapporteur notes that activities currently being undertaken at the national level - for example, in Mexico, Canada and Guatemala under different social and political conditions - clearly illustrate some of the fundamental problems he has been led to raise in the course of his mandate, notably the issue of collective rights for indigenous peoples in today's pluri-ethnic societies and the need in that context for mutually agreed conflict-resolution mechanisms. (19)
52. Also in connection with the three situations outlined above, it must be stressed that treaties themselves and treaty-making (in the broadest sense of this term) are matters that, in the view of the Special Rapporteur, require further conceptual elaboration.
53. The Special Rapporteur is of the opinion that one should avoid making oneself a prisoner of existing terminology. This does not preclude in any way, however, the conclusions to be drawn from a non-Eurocentric historiography of treaties/agreements between indigenous peoples and States and the corresponding status of indigenous peoples in international law – a historiography to which he devoted a crucial section of his second progress report. (20) There are, basically, two sides to the issue.
54. Firstly, according to the future-oriented aspects of this study, that is, the lessons to be drawn from the study as to the potential for negotiating treaties and other consensual legal instruments and practical mechanisms in order to ensure better relations in the future between indigenous peoples and States, a narrow definition of "a treaty" and "treaty-making" would hinder or pre-empt any innovative thinking in the field. Yet it is precisely innovative thinking that is needed to solve the predicament in which many indigenous peoples find themselves at present.
55. Secondly, such a narrow definition of treaties and treaty-making would impede (or even preclude) any proper account of indigenous views on these issues, simply because of the widely-held rationale that indigenous peoples are not "States" in the current sense of the term in international law, regardless of their generally recognized status as sovereign entities in the era of the Law of Nations.
56. It is worth reiterating that it would be equally erroneous to assume that indigenous peoples have no proper understanding of the nature, formalities and implications of treaties and treaty-making. Some authorities on the issue, however, attribute to them a total lack of understanding of the principles of such instruments and their "codes". Nonetheless, not only bibliographical sources but also direct testimony gathered by the Special Rapporteur from indigenous sources provide ample proof to counter this assumption.
57. It has been brought to his attention from the start of his endeavours that the concept and practice of entering into international agreements – that is, compacts between sovereign entities, whether nations, "tribes" or whatever they choose to call themselves - was widespread among indigenous peoples in the Americas, Aotearoa/New Zealand and elsewhere before the arrival of the European colonizer and continues to be so.
58. In addition, during field research, many indigenous sources (oceans apart) consistently advised the Special Rapporteur that, on a number of occasions in the course of negotiations, the non-indigenous parties had failed to adequately inform their indigenous counterparts (that is, the ancestors of those indigenous sources) of the cause and object of the compact, frequently drafted only in the European languages and then orally translated. The linguistic difficulties this entailed for the indigenous parties often prevented them from gaining a full understanding of the true nature and extent of the obligations that, according to the non-indigenous version of those texts (or construction of its provisions), they had assumed. This situation was obviously not conducive to free, educated consent by the indigenous parties to whatever compact emerged from those negotiations. It follows, then, that those instruments would be extremely vulnerable in any court of law worthy of its name.
59. The Special Rapporteur is of the opinion that these accounts - particularly in cases involving the cession of territories by indigenous parties - reflect the actual sequence of events, considering, in particular, the inherent inalienable condition of their lands, and the historical situations faced by many indigenous nations.
60. Dealing also with the fundamental principles governing treaty-making and its "codes", Charles Alexandrowicz has demonstrated, using the example of early African treaties with European Powers (or with their successors for that matter), that, while specific concepts regarding power, kingship and other matters of political organization may have differed between the two parties, they nevertheless rarely failed to find common ground as far as those principles were concerned.
61. Among these commonly shared fundamental principles of treaty-making, one finds: the need for mandated representatives to engage in negotiation, basic agreement on the subject matter of treaties, and concepts relating to the need for ratification and the binding power of any type of formally negotiated compact.
62. However, it should be noted that an exhaustive study of the indigenous viewpoint on a number of important aspects of treaties and treaty-making, still remains to be undertaken. Although it falls squarely under the Special Rapporteur's mandate, sufficient resources have not been available for completion of such a task. Nonetheless - in accordance with Martínez Cobo's recommendations - he has endeavoured wherever possible to take proper account of indigenous knowledge and institutional set-up regarding the history of treaties and treaty-making, as well as the lessons indigenous peoples themselves tend to draw from this knowledge with a view to redefining their relationship with the States in which they now live.
63. In more theoretical terms, one might argue that the principle of reciprocity represents a cross-cultural feature of treaty-making. This is also borne out by the understanding which various indigenous parties to treaties perpetuate regarding the basic nature of the treaty relationship.
64. A case in point - but not the only one - is the indigenous understanding of some of the numbered treaties in present-day Canada, which has become easily accessible thanks to recently published research. (21) In conjunction with the work of the Royal Commission on Aboriginal Peoples in that country, a large number of accounts of indigenous treaty interpretations have been submitted. Unfortunately, the Special Rapporteur has not had the opportunity to study these accounts in depth. Nonetheless, there is no doubt as to their importance both for the handling of indigenous situations in Canada and his own conclusions in this final report.
65. One final remark on the overall issue of the treaty problematique: it has not been possible for the Special Rapporteur to assess thoroughly all the possible connections between this problematique and the general question of "the human rights of indigenous individuals". Obviously, this is a very different notion from that of "the rights of indigenous peoples", which is much broader in scope and, in fact, includes those individual rights.
66. Regarding the content of this final report and in accordance with the terms of reference of the Special Rapporteur's mandate, the process of "domestication" of all issues relating to indigenous peoples is of singular importance and obviously requires further analysis and elaboration in this final stage of his work. An extensive review of the origin of this process is necessary to gain a full understanding of crucial juridical and socio-economic elements of the present-day situation of these peoples, as manifested in former European settler colonies (and the States which succeeded them) when the relationship originated, and also as it now exists in relevant, today multi-national, States in Latin America, Africa, Asia, the Pacific and northern Europe. Consequently, this question will be dealt with in extenso in the conclusions offered in chapter III of this final report.
67. On the other hand, the process of the domestication of indigenous issues must be set off against that of independence/decolonization in the Latin American, African, Asian and Pacific countries (which differ greatly), since it raises a further and very pertinent issue, namely that of the relevance of the concept of "indigenousness" with reference to any possible case of "State-oppressed peoples", including "minorities", in the particular context of present-day African, Asian and Pacific States.
68. In the latter countries, the era of decolonization brought about a radical change in the concept of the qualifier "indigenous". This was a result of a new political context whose most visible symbol was the emergence of a large number of new States under contemporary international law. Thus, from a conceptual viewpoint, the Special Rapporteur considers it necessary to re-establish a clear-cut distinction between indigenous peoples and national or ethnic minorities. This differentiation of course is not to be construed as implying lack of recognition of those minorities' collective rights as distinct societies.
69. In this connection, it should be noted that in 1991, at the beginning of his work, and in establishing guidelines for his research as a whole, the Special Rapporteur decided to distinguish strictly between "minorities" and "indigenous peoples". (22) In addition, it should be borne in mind, that in accordance with the criteria adopted by him in 1995 with respect to his future plan of work, in the final phase "the emphasis of the study should be on cases and situations in which the 'indigenous peoples' category is already established beyond any doubt from a historical and modern-day point of view". (23)
70. Years of research and reflection at various levels of the United Nations system, especially by the Commission on Human Rights and its Sub-Commission, have not yielded a generally accepted definition of the term "minority", nor of the qualifiers often associated with it, such as "ethnic" or "national".
71. The significance, on the other hand, of the "working definition" of "indigenous peoples" formulated by Special Rapporteur José Martínez Cobo in the last part of his study, lies in the fact that his Conclusions have been recognized as "an acceptable basis of work" by the Commission and its subsidiary bodies.
72. Nevertheless - as has been argued earlier in the progress reports of this study - in Martínez Cobo's attempt to extend his "working definition" to all cases brought to his attention in the course of his mandate, he tended to lump together situations that this Special Rapporteur believes should be differentiated because of their intrinsic dissimilarities.
73. These dissimilarities hinge on a number of historical factors that call for a clear distinction to be made between the phenomenon of the territorial expansion by indigenous nations into adjacent areas and that of the organized colonization, by European powers, of peoples inhabiting, since time immemorial, territories on other continents.
74. Of particular concern to the Special Rapporteur, vis-à-vis this study, was the fact that, in the context of current United Nations practice and in accordance with existing international legal instruments and standards, the securing of effective international protection of minority rights remains very much confined to the realm of their individual rights. In addition, this overall issue is mainly dealt with as a matter pertaining to the internal jurisdiction of States, thus precluding any alternative approach.
75. Yet, indigenous peoples justly attach considerable importance to the recognition, promotion and securing of their collective rights, that is, their rights as social groups. Equally, they seek the possible establishment of international mechanisms for the resolution of conflicts with State authorities, in particular, in connection with the rights recognized in, or acquired by means, of instruments with acknowledged international status, such as treaties.
76. Consequently, the Special Rapporteur has already expressed the view that indigenous peoples, although they may constitute numerical minorities in a number of the countries in which they now live, are not "minorities" in accordance with United Nations usage and for the purposes of possible practical action on the part of the Organization. (24) By the same token, ethnic and/or national minorities are not to be considered "indigenous peoples" in the United Nations context.
77. It is worth pointing out that United Nations policy on this point is now well established; especially since 1994 with the establishment of the Working Group on Minorities under the Sub-Commission, by decision of the Economic and Social Council upon the recommendation of both the Commission and the Sub-Commission itself. (25)
78. In the course of his conceptual reflections, the Special Rapporteur was also led to underscore that, in the African and Asian contexts, the problematique of indigenous communities is rarely coextensive with that of the treaty relationship, (26) although it may well be that, among others, the case of the Maasai is an exception warranting further scrutiny, given their role in the negotiations leading to Kenya's independence.
79. It remains nevertheless true that communities which could be regarded as indigenous in the context of Martínez Cobo's study, given their lifestyles and habitat - but excluding other factors, such as their "indigenousness" condition today as compared with the "indigenousness" of other communities coexisting with them in the post-colonial era in the territory of practically all States on the African and Asian continents - tended not to be parties to treaties or agreements either with the colonial powers or with the States that succeeded those powers after decolonization and independence. (27)
80. It must be underlined, however, that the Special Rapporteur has not been in a position to assess all possible overlaps and contradictions of every treaty-related issue and the overall indigenous problematique in the African and Asian contexts.
81. Moreover in this connection, it can be validly argued that the legacy of "protected" tribal areas in Africa and Asia (especially in regions formerly included in the British colonial empire, for example in India and southern Africa) has raised a number of specific problems - particularly when reflected in the work of some international organizations, such as the International Labour Organization and the Organisation of American States - that has contributed to the confusion on the issue of the well-established, clear-cut minorities/indigenous dichotomy.
82. Despite important lacunae in this respect, the Special Rapporteur has been led to draw some tentative ground rules from these particular issues, in particular regarding the status and situation of indigenous peoples not yet parties to any formal and consensual bilateral juridical instrument.
83. It should be recalled that many representatives of what they describe as State-oppressed groups/minorities/peoples in Africa and Asia have brought their case before the Working Group on Indigenous Populations for lack of other venues for the submission of their grievances. This situation is now being remedied with the establishment of the Working Group on Minorities.
84. It follows that, while their particular situation may qualify as a matter for general consideration within the framework of United Nations activities on the overall issues of the prevention of discrimination and the protection of minorities, its relevance is either tangential, extremely limited, or non-existent in a contemporary context regarding the issue of treaties/agreements and constructive arrangements between indigenous peoples and States - including their role in view of future agreements between indigenous and non-indigenous parties - and particularly for the present study in the light of the terms of reference of the Special Rapporteur's mandate under Commission on Human Rights resolution 1988/56.
85. In this final phase of the study, the emphasis, as explained earlier, is therefore to be only on situations where, in the view of the Special Rapporteur, the category of indigenous peoples has been established beyond doubt.
86. Concerning this important question, the Special Reporter considers it his duty to point out that - as was to be expected - the contents of this last part (paras. 66-85 above) of chapter I of his final report aroused critical reactions on the part of a number of participants in the sixteenth session of the Working Group, in 1998, when the present report was circulated in its unedited version (and in English only) as a working document. Both in their interventions during the debate on the subject and in conversations outside the meeting room, as well as in communications they sent to him later, various participants from Asia and Africa made known to the Special Rapporteur their complete disagreement with the content of the above-mentioned paragraphs.
87. As he had undertaken to do at the end of the debate that took place at the sixteenth session of the Working Group (see E/CN.4/Sub.2/1998/16, para. 102), the Special Rapporteur gave serious consideration to those comments, particularly those contained in the written communications. Leaving aside certain unacceptable (because unsubstantiated) invective contained in some of these communications - such as attributing to him a prevalence of "colonial and possibly even racists values" in his outlook and his methodological approach towards the question - the Special Rapporteur came to the conclusion that the arguments put forward therein were not sufficient to make him alter the basic views set out in the above-mentioned paragraphs of this report; all of which he reiterates on the present occasion.
88. Such reiteration is basically justified, given that in none of the communications he received was a serious counter-argument put forward to refute the obvious fact that in post-colonial Africa and Asia autochthonous groups/minorities/ethnic groups/peoples who seek to exercise rights presumed to be or actually infringed by the existing autochthonous authorities in the States in which they live cannot, in the view of the Special Rapporteur, claim for themselves, unilaterally and exclusively, the "indigenous" status in the United Nations context.
89. As mentioned previously, and given the exclusive character that the term "indigenous" has in this context, other groups, minorities, ethnic groups or peoples who live alongside them on the territory of a present-day multi-national or multi-ethnic African or Asian State - whose (sometimes aberrant) frontiers are the result of a colonial situation, perhaps legally defunct but which continues to cast its shadow on the present - would thus be excluded from this category of "indigenous". These States - whose existence as such is, in the majority of cases, very recent - have not only the right but also the duty to preserve their fragile territorial integrity. The risk to such States of breaking up (or "balkanization") which such unilateral claims to "indigenousness" imply naturally cannot be taken lightly. It should be said that, with perhaps less defensible historical circumstances, many developed States, with centuries of existence as nation-States behind them, demonstrate the same reticence with respect to such a possibility, however remote it might be in fact.
90. To sum up: the Special Rapporteur firmly maintains his view that the situations described above, the scenario of which is African or Asian States, should be analysed in other forums of the United Nations than those that are currently concerned with the problems of indigenous peoples; in particular in the Working Group on Minorities of the Sub-Commission on Prevention of Discrimination and Protection of Minorities.
91. It needs to be reiterated also that the Special Rapporteur is not defending the absurd position of denying the existence on the African and Asian continents - as was affirmed in some of those statements and communications - of populations who are ethnic groups, minorities, peoples or autochthonous groups; on the contrary, all of them are. Therefore, except in certain cases mentioned in the present report (or a few others which could be considered in greater depth on the basis of further information), the term "indigenous" - exclusive by definition - is particularly inappropriate in the context of the Afro-Asian problematique and within the framework of United Nations activities in this field.
92. Lastly with respect to several other criticisms of opinions put forward in the present report on this issue, the Special Rapporteur would point out that the great value of, and the respect he has for, the views advanced on the subject by Mr. Martínez Cobo and by the distinguished Chairperson-Rapporteur of the Working Group, Ms. Erika Irene Daes in their respective studies do not mean that he is necessarily obliged to share those views.
93. In the three progress reports submitted until now, the Special Rapporteur has endeavoured to address not only the various aspects of the question of treaties between indigenous peoples and States as identified by Mr. Martínez Cobo, (28) but also those same aspects in connection with agreements and other constructive arrangements as mandated by the Commission and the Economic and Social Council.
94. Those issues are, among others, the areas covered by such instruments, their present-day legal standing, their implementation or lack thereof, and the consequences this might entail for indigenous peoples.
95. These aspects were addressed on the basis of manifold sources and documentation, including the responses received to the two questionnaires circulated twice at the beginning of the mandate; (29) the results of field and archival research conducted either by the Special Rapporteur or his consultant; and extensive documentation and other materials submitted by interested parties, whether States, indigenous peoples or organizations, scholars and other individuals concerned.
96. The sheer volume and diversity of these documents have led the Special Rapporteur to devote particular attention to the overall approach of the study and its methodological and theoretical challenges. The main approaches taken in this regard were spelled out in his first progress report. (30) They can be summarized as follows.
97. The Special Rapporteur insisted from the start on the need for a transdisciplinary approach – albeit with a strong juridical focus. (31)
98. Any attempt to explore and understand indigenous representations and traditions regarding treaties, agreements and other constructive arrangements must be carried out so as to favour a decentred view on culture, society, law and history, and to deal critically with ethnocentrism, eurocentrism and the evolutionist paradigm.
99. Moreover, the close connection between the indigenous problematique and the phenomena of colonialism, domination and assimilationist policies had to be thoroughly reviewed and acknowledged. This is a connection also made in the academic disciplines involved (such as anthropology), as well as in the legal discourse and in positive law. (32)
100. There are numerous historical examples of law as an instrument of colonialism, such as the doctrine of terra nullius, the encomienda and repartimiento systems instituted in Latin America by the Spanish Crown in the sixteenth century, the so-called "removal treaties" imposed on the indigenous nations of the south-eastern United States under President Jackson in the 1830s, and various types of State legislation encroaching on (or ignoring) previously recognized indigenous jurisdiction, such as the Seven Major Crimes Act and the Dawes Severalty Act passed by the United States Congress in the 1880s, the federal Indian Act in Canada, post-Mabo legislation in Australia and many pieces of legislation throughout Latin America.
101. Yet, with rare exceptions, the discourses of law itself, including that on treaties and treaty-making in the context of European expansion overseas and that of their successors in the territories conquered, are not impervious to anachronism and ex post facto reasoning, thus condoning discrimination of indigenous peoples rather than affording them justice and fair treatment.
102. A critical historiography of international relations clearly shows the dangers of this particular kind of reasoning, which projects into the past the current domesticated status of indigenous peoples as it evolved from developments that took place mainly in the second half of the nineteenth century under the impact of legal positivism and other theories advocated by European colonial powers and their continuators.
103. In his second progress report, the Special Rapporteur endeavoured, inter alia, to assess the contribution of that historiography to a better understanding of treaties and other legal instruments mutually agreed to by indigenous peoples and States, considering in particular the works of Charles H. Alexandrowicz and other relevant authors. (33)
104. As established above (para. 55), the main finding that emerges from these works relates to the widespread recognition of "overseas peoples" - including indigenous peoples in the current sense of the term - as sovereign entities by European powers and their successors, at least during the era of the Law of Nations.
105. Consequently, the problematique of indigenous treaties and other juridical instruments today affecting the lives of these peoples, hinges on what the Special Rapporteur has termed a process of retrogression, by which they have been deprived of (or saw greatly reduced) three of the four essential attributes on which their original status as sovereign nations was grounded, namely their territory, their recognized capacity to enter into international agreements, and their specific forms of government. (34) Not to mention the substantial reduction of their respective populations in many countries around the world, due to a number of factors including, assimilationist policies.
106. This aspect can hardly be overemphasized, especially since the ultimate purpose of the study pertains to the potential utility of yet another process of reversal that would eventually lead toward renewed recognition of indigenous peoples as distinct collectivities, allowing these peoples redress for decades - if not centuries - of discrimination and forced integration.
107. It is against this backdrop that the following summary of the Special Rapporteur's findings regarding the three main categories of juridical instruments retained for study (see para. 93 above) ought to be considered.
109. It should be noted that, although the Special Rapporteur affirmed initially that few, if any, treaties could be traced back to colonial times in Latin America, (35) further research has led him to reconsider this assumption. This modified approach is documented in the third progress report, especially with the example of the Mapuche parlamentos (Chile). At this final stage of his work, the Special Rapporteur is inclined to accept that the origin, causes and development of these juridical instruments can be compared, prima facie and in some aspects, to those of certain indigenous treaties in British and French North America. (36)
110. In establishing formal legal relationships with peoples overseas, the European parties were clearly aware that they were negotiating and entering into contractual relations with sovereign nations, with all the international legal implications of that term during the period under consideration. (37)
111. This remains true independently of the predominance, nowadays, of more restricted, State-promoted notions of indigenous "self-government", "autonomy", "nationhood" and "partnership" - if only because the "legitimization" of their colonization and trade interests made it imperative for European powers to recognize indigenous nations as sovereign entities.
112. In the course of history, the newcomers then nevertheless attempted to divest indigenous peoples, as pointed out above, of their sovereign attributes, especially jurisdiction over their lands, recognition of their forms of societal organization, and their status as subjects of international law.
113. The various ways and means utilized in the process of domesticating relations with indigenous peoples in the context of those former European settler colonies were addressed both in the second progress report (New Zealand, Australia and the unique case of Hawaii) (38) and in the third progress report (Canada, United States and Chile). (39) For a more general and detailed review of this process and its consequences, see chapter III below.
114. Nonetheless, it is important to stress at this point that the passage, for indigenous peoples, from the status of sovereign nations to that of State-domesticated entities raised a certain number of questions and posed specific challenges from the point of view of this study.
115. First of all, in the case of treaty relations, one notes a general tendency to contest whether treaties involving indigenous peoples have a standing, nowadays, in international law. This point of view, which is widespread among the legal establishment and in scholarly literature, (40) has been basically grounded alternatively on three assumptions: either it is held that indigenous peoples are not peoples according to the meaning of the term in international law; or that treaties involving indigenous peoples are not treaties in the present conventional sense of the term, that is, instruments concluded between sovereign States (hence the established position of the United States and Canadian judiciary, by virtue of which treaties involving indigenous peoples are considered to be instruments sui generis); or that those legal instruments have simply been superseded by the realities of life as reflected in the domestic legislation of States.
116. Whatever the reasoning followed, the dominant viewpoint - as reflected, in general, in the specialized literature and in State administrative decisions, as well as in the decisions of the domestic courts - asserts that treaties involving indigenous peoples are basically a domestic issue, to be construed, eventually implemented and adjudicated via existing internal mechanisms, such as the courts and federal (and even local) authorities.
117. It is worth underlining, however, that this position is not shared by indigenous parties to treaties, whose own traditions on treaty provisions and treaty-making (or on negotiating other kinds of compacts) continue to uphold the international standing of such instruments. Indeed, for many indigenous peoples, treaties concluded with European powers or their territorial successors overseas are, above all, treaties of peace and friendship, destined to organize coexistence in - not their exclusion from - the same territory and not to regulate restrictively their lives (within or without this same territory), under the overall jurisdiction of non-indigenous authorities. In their view, this would be a trampling on their right to self-determination and/or their other unrelinquished rights as peoples.
118. By the same token, indigenous parties to treaties have rejected the assumption held by State parties, that treaties provided for the unconditional cession of indigenous lands and jurisdiction to the settler States.
119. It is worth noting in this regard that indigenous views on treaties have begun to receive increased attention in some countries, such as Chile, New Zealand and Canada. Thus, in its recent Final Report, the Royal Commission on Aboriginal Peoples, established by the Government of Canada, recommended that the oral history of treaties, orally transmitted from generation to generation among indigenous peoples, should be used to supplement the official interpretation of treaties based on the written document. (41)
120. Nevertheless, the contradictions one notes regarding the historiography and interpretation of treaties, depending on whether one is dealing with State-promoted views on this matter, the established academic legal discourse or the traditions upheld by indigenous peoples themselves, in their practical consequences undoubtedly create a conflict situation.
121. In addition, these contradictions place a formidable burden on the formulation and realization of future negotiated legal instruments between indigenous peoples and States: the difficulties of negotiating those new instruments without having previously identified and settled key questions need not be stressed.
122. This observation clearly pertains to all treaty/agreement-related issues. One example is the alleged opposition, in the Canadian context, between treaties of peace and friendship (concluded in the eighteenth century and earlier) and so-called numbered treaties of "land surrenders" (especially from the second half of the nineteenth century on). This opposition is contradicted by indigenous parties to numbered treaties, who consider that they are parties to treaties of peace, friendship and alliance and that they did not cede either their territories or their original juridical status as sovereigns. Similar discrepancies are to be noted in the United States and New Zealand.
123. Closer scrutiny of the provisions of treaties concluded between indigenous peoples and States also reveals that in most cases the subject of such treaties is common in international law, whatever the historical period considered; thus such treaties deal with questions of war/peace, trade provisions, protection of the subjects/citizens of each signatory party, and so forth.
124. Furthermore, while the predominant present-day legal discourse holds that treaties fall primarily within the domestic realm of States, the manner in which treaties are dealt with in municipal law and by the national courts nevertheless also raises a number of questions.
125. In this connection, failure of State parties to comply with, or their violation of, the obligations assumed under existing treaties, the unilateral abrogation of the treaty itself (or parts thereof), via State law or other mechanisms and even the failure of State parties to ratify treaties negotiated with indigenous peoples were problems identified, at an early stage of his work, by the Special Rapporteur regarding the significance of treaties/agreements at the national level.
126. Such problems are, in one way or another, connected with most juridical situations retained by the Special Rapporteur for study; moreover, they are not limited to historical situations but also arise with respect to more modern compacts. (42)
127. It follows that the enforcement and implementation of existing, recognized treaties involving indigenous peoples today can hardly be taken for granted. Furthermore, it remains to be seen what burden this state of affairs places on the modalities of future negotiated agreements between indigenous peoples and States. Obviously, this also has a number of practical consequences for the status and legal personality of indigenous peoples, both at the national and at the international level.
129. The main example examined under the heading of "other constructive arrangements" concerns the Greenland Home Rule. At the start of his mandate, on the basis of various submissions made by the Greenlandic delegates and the Government of Denmark to the Working Group, the Special Rapporteur thought it appropriate to assess whether the kind of procedure instituted by Denmark in 1979 could be useful for the realization of improved relations between indigenous and non-indigenous parties. (44)
130. His more recent, detailed analysis of Greenland Home Rule, (45) showed proof, in the view of the Special Rapporteur, that the arrangement in question entails a number of restrictions for the indigenous population of the island, both in terms of the process which led to its establishment and the effects of its provisions. For example, since the Danish Constitution has full effect in Greenland, the Home Rule authorities must abide by all constitutional provisions in crucial fields such as foreign policy and the obligations arising from international agreements entered into by Denmark.
131. This could have had certain grounds of legitimacy - in terms of the real exercise by Greenlanders of the right to self-determination - had the effective input of the indigenous population of Greenland into the formulation and implementation of Home Rule not been limited.
132. The Special Rapporteur is of the opinion that the type of "autonomy regime" provided for under Home Rule does not amount to the exercise of the right to self-determination by the population of Greenland. By the same token, he believes that the way in which the discussions took place between Greenlandic and Danish officials prior to the introduction of Home Rule in 1979 can in no way be described as a constructive example of the full exercise of that inalienable right.
133. In other countries, discussions are currently taking place with a view to establishing (or implementing) autonomy regimes, or adopting measures to recognize a distinct legal status for indigenous peoples, whether these are to be decreed by law or to be enshrined in the national constitution. Prominent examples addressed by the Special Rapporteur concern the Kuna Yala in Panama and the Atlantic region in Nicaragua. (46) One should also take cognizance of the new developments taking place in Guatemala in the past few years.
134. These autonomy regimes have brought (or may bring) certain advantages to indigenous peoples. For example, in the case of Panama, autonomy has allowed for the recognition by the State of the traditional political authorities of the Kuna Indians, especially the Kuna General Congress, and some control over development policies within the indigenous territory.
135. The Special Rapporteur notes, however, that recognition of "autonomy" for indigenous peoples within the State (whatever powers or restrictions thereto are established), most probably will neither automatically end States' aspirations to exert eventually the fullest authority possible (including integrating and assimilating those peoples) nor nullify whatever inalienable rights these people may have as such.
136. Moreover, the mechanisms through which "autonomy regimes" for indigenous peoples are being formulated and implemented must be assessed, on a case-by-case basis, for proof of free and informed consent by all parties concerned, especially indigenous peoples. (47)
137. Similar concerns might be raised about other juridical situations that could be described by some sources as "constructive arrangements" - most prominently the James Bay and Northern Québec Agreement (Convention in its French version), the first in a series of so-called "comprehensive land claims settlements" in Canada - which were addressed by the Special Rapporteur in his third progress report. (48)
138. These concerns refer to, inter alia, the fact that, in this particular case, treaty negotiations were only set in motion after considerable turmoil in connection with a vast, government-sponsored hydroelectric project. Moreover, the amount of litigation the agreement in question has generated led the Special Rapporteur to ponder very seriously the efficacy of treaty negotiations in a situation of economic, environmental and political duress resulting from one-sided government policies.
139. Given the actual prevalence of the policy of comprehensive land claims settlement in Canada and the avalanche of documentation requiring review in this regard, the Special Rapporteur is not in a position, at present, to hold anything more than tentative views on other cases regarding this particular type of "constructive arrangement".
140. Discussions and negotiations currently taking place in several countries (not only in Canada), warrant further, long-term analysis of the mechanisms envisaged and applied to arrive at a settlement, and the modalities of their implementation. It should be noted in this regard that the completion of several land claims settlements and so-called "modern treaties" in Canada raises a number of interesting issues. Among them is the wide variety of parties (indigenous nations, provincial authorities, and the federal Government) involved in such treaty-making processes.
141. The significance and international relevance of developments in Canada cannot be overstressed, if only because they highlight the importance and potential utility of establishing sound, equitable "ground rules" for the negotiations required to draft and conclude "constructive arrangements", as well as for the efficient performance of the mechanisms for their practical implementation which are so necessary for developing new approaches to indigenous problems, not only in Canada, but also in all other multi-national countries with the same or similar problems. Indeed, all this will be put to the test in the vast array of "comprehensive land claims settlement" and treaty negotiations that are currently taking place in various regions of Canada, for example, in British Columbia - where a first agreement was reached with the Nishga in 1996 - and in the Northwest Territories - where one notes the particular difficulties encountered by indigenous peoples. Thus, after negotiations with the Déné nation as a whole broke up in the late 1980s, the State party decided to negotiate with individual bands. To date, two settlements have been reached, namely with the Sahtu and the Gwich'in. (49)
142. Such fragmentation of indigenous entities via the negotiation process also occurred in other cases, for example that of the Lubicon Cree, in which, according to the information available to the Special Rapporteur, a new band was created - under questionable conditions, according to some indigenous sources - to facilitate a partial land claims settlement. To date, however, the Lubicon case itself has not been settled, mainly because the indigenous party is unwilling to accept the complete extinguishment of native title as a prerequisite for settlement.
143. In all situations - whether or not governed by treatries/agreements - the issue of possible extinguishment of indigenous rights to their lands, either by treaty/agreement or "constructive arrangements", is of crucial importance, since it imposes duress on the indigenous party.
144. It follows that the category of "other constructive arrangements", while added belatedly to the mandate of the Special Rapporteur, has revealed itself to be of particular significance as far as how to identify and duly establish solid bases for a new, more equitable future relationship between the indigenous and non-indigenous sectors of society is concerned.
145. At this stage it is important to note that contrary to treaties (especially so-called "historical" treaties), constructive arrangements – and this applies to all examples considered to date under the mandate of the Special Rapporteur - are intended, per se, to be dealt with exclusively within the municipal setting.
146. From the abundant information recently received, in situ, by the Special Rapporteur, it seems clear that in the Canadian context, constructive arrangements such as "comprehensive land claims settlements" and so-called "modern treaties" are basically conceived as a means of settling all outstanding indigenous claims. According to this information, they mostly concern areas in which indigenous peoples are not parties to treaties. In general it remains to be seen in what manner the enforcement and implementation of the provisions of possible constructive arrangements of this type can be ensured, especially for the indigenous parties to such agreements.
147. From the start, the Special Rapporteur decided that, in order to fulfil his mandate, it was imperative to review the situation of indigenous peoples that are not parties to any of the instruments covered by the study.
148. Lacking such a review, it would be impossible for him to assess whether or not treaty-making (again, in the broadest sense of this term) can be considered as an appropriate juridical tool to improve the situation of indigenous peoples in general, to set the pattern for eradicating any discriminatory treatment against them and to gradually put an end to the present-day antagonistic nature of the relationship between indigenous and non-indigenous peoples living together in many countries.
149. Regarding the categories of indigenous peoples falling under the present section, the Special Rapporteur identified the following general situations in his first progress report: (a) indigenous peoples who have never entered into consensual relations with any State; (b) indigenous peoples parties to instruments that were unilaterally abrogated - either formally or by way of outright non-implementation - by the State party; (c) indigenous peoples who participated in the negotiation and adoption of instruments that were never ratified by the competent State bodies; and (d) indigenous peoples living in countries where, as the result of an effective process of acculturation, the municipal legislation lacks specific provisions guaranteeing distinct status to them and protection of their rights as peoples.