Convention No.169 is a legally binding international instrument open to ratification, which deals specifically with the rights of indigenous and tribal peoples. Today, it has been ratified by 20 countries. Once it ratifies the Convention, a country has one year to align legislation, policies and programmes to the Convention before it becomes legally binding. Countries that have ratified the Convention are subject to supervision with regards to its implementation
The basic principles of ILO Convention
Identification of indigenous and tribal peoples.
The Convention does not define who are indigenous and tribal peoples. It takes a practical approach and only provides criteria for describing the peoples it aims to protect. Self-identification is considered as a fundamental criterion for the identification of indigenous and tribal peoples, along with the criteria outlined below.
Elements of tribal peoples include:
Elements of indigenous peoples include:
In recognition of the fact that indigenous and tribal peoples are likely to be discriminated against in many areas, the first general, fundamental principle of Convention No. 169 is non-discrimination. Article 3 of the Convention states that indigenous peoples have the right to enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. In Article 4, the Convention also guarantees enjoyment of the general rights of citizenship without discrimination. Another principle in the Convention concerns the application of all its provisions to male and female indigenous persons without discrimination (Article 3). Article 20 provides for prevention of discrimination against indigenous workers.
In response to the vulnerable situation of indigenous and tribal peoples, Article 4 of the Convention calls for special measures to be adopted to safeguard the persons, institutions, property, labour, cultures and environment of these peoples. In addition, the Convention stipulates that these special measures should not go against the free wishes of indigenous peoples.
Recognition of the cultural and other specificities of indigenous and tribal peoples
Indigenous and tribal peoples’ cultures and identities form an integral part of their lives. Their ways of life, customs and traditions, institutions, customary laws, forms of land use and forms of social organization are usually different from those of the dominant population. The Convention recognizes these differences, and aims to ensure that they are protected and taken into account when any measures are being undertaken that are likely to have an impact on these peoples.
Consultation and participation
The spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all its provisions are based. 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.
The principles of consultation and participation in Convention No. 169 relate not only to specific development projects, but also to broader questions of governance, and the participation of indigenous and tribal peoples in public life.
In Article 6, the Convention provides a guideline as to how consultation with indigenous and tribal peoples should be conducted:
Consultation with indigenous peoples should be undertaken through appropriate procedures, in good faith, and through the representative institutions of these peoples;
The peoples involved should have the opportunity to participate freely at all levels in the formulation, implementation and evaluation of measures and programmes that affect them directly;
Another important component of the concept of consultation is that of representativity. If an appropriate consultation process is not developed with the indigenous and tribal institutions or organizations that are truly representative of the peoples in question, then the resulting consultations would not comply with the requirements of the Convention.
The Convention also specifies individual circumstances in which consultation with indigenous and tribal peoples is an obligation.
Consultation should be undertaken in good faith, with the objective of achieving agreement. The parties involved should seek to establish a dialogue allowing them to find appropriate solutions in an atmosphere of mutual respect and full participation. Effective consultation is consultation in which those concerned have an opportunity to influence the decision taken. This means real and timely consultation. For example, a simple information meeting does not constitute real consultation, nor does a meeting that is conducted in a language that the indigenous peoples present do not understand.
The challenges of implementing an appropriate process of consultation with indigenous peoples have been the subject of a number of observations of the ILO’s Committee of Experts, as well as other supervisory procedures of the ILO, which the ILO has now compiled in a Digest. Adequate consultation is fundamental for achieving a constructive dialogue and for the effective resolution of the various challenges associated with the implementation of the rights of indigenous and tribal peoples.
Right to decide priorities for development
Article 7 of Convention No. 169 states that indigenous and tribal peoples have the right to “decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control over their economic, social and cultural development”.
This has been interpreted by the ILO’s supervisory bodies as an essential consideration when consultations with indigenous peoples take place.
Implementation of Convention No. 169
Since its adoption, Convention No. 169 has gained recognition well beyond the number of actual ratifications. Its provisions have influenced numerous policy documents, debates and legal decisions at the regional and international levels, as well as national legislation and policies.
The Provisions of Convention No. 169 are compatible with the provisions of the United Nations Declaration on the Rights of Indigenous Peoples, and the adoption of the Declaration illustrates the broader acceptance of the principles of Convention No. 169 well beyond the number of ratifications.
The Convention stipulates that governments shall have the responsibility for developing co-ordinated and systematic action to protect the rights of indigenous and tribal peoples (Article 3) and ensure that appropriate mechanisms and means are available (Article 33). With its focus on consultation and participation, Convention No. 169 is a tool to stimulate dialogue between governments and indigenous and tribal peoples and has been used as a tool for development processes, as well as conflict prevention and resolution.
Although considerable progress has been made with regards to the implementation of the Convention in the countries that have ratified, the supervisory bodies of the ILO have also noted a number of implementation challenges, particularly with regards to the coordinated and systematic action required as well as the need to ensure consultation and participation of indigenous peoples in decisions that affect them.
At the country-level, it has become evident that a focus on good practices and lessons learned from practical implementation is crucial for achieving a constructive dialogue. This is especially the case in Africa and Asia, where the perceived sensitivity of indigenous issues is a major obstacle to dialogue. Therefore, a new focus of the ILO’s work in this area is on the documentation of good practices for the implementation of the principles of Convention No. 169, in order to enable key actors to benefit and learn from broader experiences in their work. The ILO is gradually making a series of good practice studies available, related to the main provisions of Convention No. 169