International Labour Organisation Convention No. 169
Concerning Indigenous and
Tribal Peoples in Independent Countries
Adopted on 27 June 1989 by the General
Conference of the International Labour Organization at its 76th session
entry into force 5
September 1991
The General Conference of the International Labour Organization,
Having been convened at Geneva by the Governing Body of the
International Labour Office, and
having met in its seventy-sixth session on 7 June 1989,and
Noting the international standards contained in the
Indigenous
and Tribal Populations Convention and Recommendation, 1957, and
Recalling the terms of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights,
the International
Covenant on Civil and Political Rights, and the many
international instruments on the prevention of discrimination, and
Considering that the developments which have taken place in
international law since 1957, as well as developments in the situation of
indigenous and tribal peoples in all regions of the world, have made it
appropriate to adopt new international standards on the subject with a view
to removing the assimilationist orientation of the earlier standards, and
Recognising the aspirations of these peoples to exercise
control over their own institutions, ways of life and economic development
and to maintain and develop their identities, languages and religions,
within the framework of the States in which they live, and
Noting that in many parts of the world these 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, and
Calling attention to the distinctive contributions of
indigenous and tribal peoples to the cultural diversity and social and
ecological harmony of humankind and to international co-operation and
understanding, and
Noting that the following provisions have
been framed with the co-operation of the
United Nations, the Food and
Agriculture Organization of the United Nations, the
United Nations
Educational, Scientific and Cultural Organization and the
World Health Organization, as well as of
the Inter-American Indian
Institute, at
appropriate levels and in their respective fields, and that it is proposed
to continue this co-operation in promoting and securing the application of
these provisions, and
Having decided upon the adoption of
certain proposals with regard to the partial revision of the
Indigenous
and Tribal Populations Convention, 1957 (No. 107), which is the
fourth item on the agenda of the session, and Having determined that these
proposals shall take the form of an international Convention revising the
Indigenous and Tribal Populations Convention, 1957, Adopts
this twenty-seventh day of June of the year one thousand nine hundred and
eighty-nine the following Convention, which may be cited as the Indigenous
and Tribal Peoples Convention, 1989:
PART I. GENERAL POLICY
Article 1 1. This Convention applies to:
(a) Tribal peoples in indepedepent uish them from other sections of the
national community, and whose status is regulated wholly or partially by
their own customs or traditions or by special laws or regulations;
(b) Peoples in independent countries who are regarded as
indigenous on account of their descent from the populations which inhabited
the country, or a geographical region to which the country belongs, at the
time of conquest or colonisation or the establishment of present State
boundaries and who, irrespective of their legal status, retain some or all
of their own social, economic, cultural and political institutions.
2. Self-identification as indigenous or tribal shall be regarded
as a fundamental criterion for determining the groups to which the
provisions of this Convention apply.
3. The use of the term "peoples" in this Convention shall not be construed as having
any implications as regards the rights which may attach to the term under
international law.
Article 2 1. Governments shall have the responsibility for
developing, with the participation of the peoples concerned, co-ordinated
and systematic action to protect the rights of these peoples and to
guarantee respect for their integrity. 2. Such action shall include measures for:
(a) Ensuring that members of these peoples benefit on
an equal footing from the rights and opportunities which national laws and
regulations grant to other members of the population; (b) Promoting
the full realisation of the social, economic and cultural rights of these
peoples with respect for their social and cultural identity, their customs
and traditions and their institutions; (c) Assisting the members of
the peoples concerned to eliminate socio-economic gaps that may exist
between indigenous and other members of the national community, in a manner
compatible with their aspirations and ways of life.
Article 3
1. Indigenous and tribal peoples shall enjoy the full measure
of human rights and fundamental freedoms without hindrance or
discrimination. The provisions of the Convention shall be applied without
discrimination to male and female members of these peoples. 2. No
form of force or coercion shall be used in violation of the human rights
and fundamental freedoms of the peoples concerned, including the rights
contained in this Convention. Article 4 1. Special
measures shall be adopted as appropriate for safeguarding the persons,
institutions, property, labour, cultures and environment of the peoples
concerned. 2. Such special measures shall not be contrary to the
freely-expressed wishes of the peoples concerned. 3. Enjoyment of
the general rights of citizenship, without discrimination, shall not be
prejudiced in any way by such special measures. Article 5
In applying the provisions of this Convention:
(a) The social, cultural, religious and spiritual values and practices of these
peoples shall be recognised and protect which face them both as groups and as
individuals;
(b) The integrity of the values, practices and
institutions of these peoples shall be respected; (c) Policies aimed
at mitigating the difficulties experienced by these peoples in facing new
conditions of life and work shall be adopted, with the participation and
co-operation of the peoples affected.
Article 6 1. In applying the provisions of this Convention, Governments shall:
(a)
Consult the peoples concerned, through appropriate procedures and in
particular through their representative institutions, whenever
consideration is being given to legislative or administrative measures
which may affect them directly; (b) Establish means by which these
peoples can freely participate, to at least the same extent as other
sectors of the population, at all levels of decision-making in elective
institutions and administrative and other bodies responsible for policies
and programmes which concern them;
(c) Establish means for the full development of these peoples' own institutions and initiatives, and in
appropriate cases provide the resources necessary for this purpose.
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.
Article 7 1. The peoples concerned
shall 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, to the extent possible, over their own economic, social and
cultural development. In addition, they shall participate in the
formulation, implementation and evaluation of plans and programmes for
national and regional development which may affect them directly. 2.
The improvement of the conditions of life and work and levels of health
and education of the peoples concerned, with thier participation and
co-operation shall be a matter of priority in plans for the overall
economic development of areas they inhabit. Special projects for development of the
areas in question shall also be so designed as to promote such
improvement.
3. Governments shall ensure that, whenever appropriate,
studies are carried out, in co-operation with the peoples concerned, to
assess the social, spiritual, cultural and environmental impact on them of
planned development activities. The results of these studies shall be
considered as fundamental criteria for the implementation of these activities.
4. Governments shall take measures, in co-operation
with the peoples concerned, to protect and preserve the environment of the territories they inhabit.
Article 8 1. In applying
national laws and regulations to the peoples concerned, due regard shall be
had to their customs or customary laws. 2. These peoples shall have
the right to retain their own customs and institutions, where these are not
incompatible with fundamental rights defined by the national legal system
and with internationally recognized human rights. Procedures shall be
established, whenever necessary, to resolve conflicts which may arise in
the application of this principle. 3. The application of paragraphs
1 and 2 of this Article shall not prevent members of these peoples from
exercising the rights granted to all citizens and from assuming the
corresponding duties.
Article 9 1. To the extent
compatible with the national legal system and internationally recognised
human rights. the methods customarily practised by the peoples concerned
for dealing with offences committed by their members shall be respected.
2. The customs of these peoples in regard to penal matters shall
be taken into consideration by the authorities and courts dealing with such cases.
Article 10 1. In imposing penalties laid
down by general law on members of these peoples account shall be taken of
their economic, social and cultural characteristics.
2. Preference shall be given to methods of punishment other than confinement in prison.
Article 11 The exaction from members of the peoples
concerned of compulsory personal services in any form, whether paid or
unpaid, shall be prohibited and punishable by law, except in cases
prescribed by law for all citizens.
Article 12
The peoples concerned shall be safeguarded against the abuse of their rights
and shall be able to take legal proceedings, either individually or through
their representative bodies, for the effective protection of these rights.
Measures shall be taken to ensure that members of these peoples can
understand and be understood in legal proceedings, where necessary through
the provision of interpretation or by other effective means.
PART II. LAND
Article 13
1. In applying the provisions of
this Part of the Convention governments shall respect the special
importance for the cultures and spiritual values of the peoples concerned
of their relationship with the lands or territories, or both as applicable,
which they occupy or otherwise use, and in particular the collective
aspects of this relationship. 2. The use of the term
"lands" in Articles 15 and 16 shall include the concept of
territories, which covers the total environment of the areas which the
peoples concerned occupy or otherwise use.
Article 14
1. The rights of ownership and possession of the peoples
concerned over the lands which they traditionally occupy shall be
recognised. In addition, measures shall be taken in appropriate cases to
safeguard the right of the peoples concerned to use lands not exclusively
occupied by them, but to which they have traditionally had access for their
subsistence and traditional activities. Particular attention shall be paid
to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify
the lands which the peoples concerned traditionally occupy, and to
guarantee effective protection of their rights of ownership and possession.
3. Adequate procedure shall be established within the legal system to
resolve land claims by people concerned.
Article 15
1. The rights of the peoples concerned to
the natural resources pertaining to their lands shall be specially
safeguarded. These rights include the right of these peoples to participate
in the use, management and conservation of these resources. 2. In
cases in which the State retains the ownership of mineral or
sub-surface resources or rights to other resources pertaining to lands,
governments shall establish or maintain procedures through which they shall
consult these peoples, with a view to ascertaining whether and to what
degree their interests would be prejudiced, before undertaking or
permitting any programmes for the exploration or exploitation of such
resources pertaining to their lands. 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.
Article 16 1. Subject to the
following paragraphs of this Article, the peoples concerned shall not be
removed from the lands which they occupy. 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.
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.
4. When such return is not possible, as determined by
agreement or, in the absence of such agreement, through appropriate
procedures, these peoples shall be provided in all possible cases with
lands of quality and legal status at least equal to that of the lands
previo future development. Where the peoples concerned express a preference for
compensation in money or in kind, they shall be so compensated under
appropriate guarantees.
5. Persons thus relocated shall be fully
compensated for any resulting loss or injury. Article 17
1. Procedures established by the peoples concerned for the
transmission of land rights among members of these peoples shall be
respected. 2. The peoples concerned shall be consulted whenever
consideration is being given to their capacity to alienate their lands or
otherwise transmit their rights outside their own community. 3.
Persons not belonging to these peoples shall be prevented from
taking advantage of their customs or of lack of understanding of the laws
on the part of their members to secure the ownership, possession or use of
land belonging to them.
Article 18 Adequate penalties
shall be established by law for unauthorised intrusion upon, or use of, the
lands of the peoples concerned, and governments shall take measures to
prevent such offences. Article 19 National agrarian
programmes shall secure to the peoples concerned treatment equivalent to
that accorded to other sectors of the population with regard to:
(a)
The provision of more land for these peoples when they have not the area
necessary for providing the essentials of a normal existence, or for any
possible increase in their numbers; (b) The provision of the means
required to promote the development of the lands which these peoples
already possess.
PART III. RECRUITMENT AND CONDITIONS OF EMPLOYMENT
Article 20 1. Governments shall, within the framework
of national laws and regulations, and in co-operation with the peoples
concerned, adopt special measures to ensure the effective protection with
regard to recruitment and conditions of employment of workers belonging to
these peoples, to the extent that they are not effectively protected by
laws applicable to workers in general. 2 ion between workers
belonging to the peoples concerned and other workers, in particular as
regards:
(a) Admission to employment, including skilled employment,
as well as measures for promotion and advancement; (b) Equal
remuneration for work of equal value; (c) Medical and social
assistance, occupational safety and health, all social security benefits
and any other occupationally related benefits, and housing; (d) The
right of association and freedom for all lawful trade union activities, and
the right to conclude collective agreements with employers or employers'
organizations.
3. The measures taken shall include measures to ensure:
(a) That
workers belonging to the peoples concerned, including seasonal, casual and
migrant workers in agricultural and other employment, as well as those
employed by labour contractors, enjoy the protection afforded by national
law and practice to other such workers in the same sectors, and that they
are fully informed of their rights under labour legislation and of the
means of redress available to them;
(b) That workers belonging to
these peoples are not subjected to working conditions hazardous to their
health, in particular through exposure to pesticides or other toxic
substances; (c) That workers belonging to these peoples are not
subjected to coerciverecruitment systems, including bonded labour and
other forms of debt servitude;
(d) That workers belonging to these peoples enjoy equal opportunities
and equal treatment in
employment for men and women, and protection from sexual harassment.
4. Particular attention shall be paid to the establishment of
adequate labour inspection services in areas where workers belonging to the
peoples concerned undertake wage employment, in order to ensure compliance
with the provisions of this Part of this Convention.
PART IV.
VOCATIONAL TRAINING, HANDICRAFTS AND RURAL INDUSTRIES
Article 21
Members of the peoples concerned shall enjoy opportunities at
least equal to those of other citizens in respect of vocational training
measures. Article 22 1. Measures shall be taken to
promote the voluntary participation of members of the peoples concerned in
vocational training programmes of general application. 2. Whenever
existing programmes of vocational training of general application do not
meet the special needs of the peoples concerned, governments shall, with
the participation of these peoples, ensure the provision of
special training programmes and facilities.
3. Any special training
programmes shall be based on the economic
the peoples concerned. Any studies made in this connection shall be
carried out in co-operation with these peoples, who shall be consulted on
the organization and operationof such programmes. Where feasible, these
peoples shall progressively assume responsibility for the organization and
operation of such special training programmes, if they so decide.
Article 23 1. Handicrafts, rural and community-based
industries, and subsistence economy and traditional activities of the
peoples concerned, such as hunting, fishing, trapping and gathering, shall
be recognised as important factors in the maintenance of their cultures and
in their economic self-reliance and development. Governments shall, with
the participation of these peoples and whenever appropriate, ensure that
these activities are strengthened and promoted.
2. Upon the request
of the peoples concerned, appropriate technical and financial assistance
shall be provided wherever possible, taking into account the traditional
technologies and cultural characteristics of these peoples, as well as the
importance of sustainable and equitable development.
PART V. SOCIAL
SECURITY AND HEALTH
Article 24 Social security
schemes shall be extended progressively to cover the peoples concerned, and
applied without discrimination against them.
Article 25
1. Governments shall ensure that adequate health services are
made available to the peoples concerned, or shall provide them with
resources to allow them to design and deliver such services under their own
responsibility and control, so that they may enjoy the highest attainable
standard of physical and mental health. 2. Health services shall, to
the extent possible, be community-based. These services shall be planned
and administered in co-operation with the peoples concerned and take into
account their economic, geographic, social and cultural conditions as well
as their traditional preventive care, healing practices and medicines.
3. The health care system y health workers, and focus on primary
healthcare while maintaining strong links with other levels of health care
services. 4. The provision of such health services shall be
co-ordinated withother social, economic and cultural measures in the
country.
PART VI. EDUCATION AND MEANS OF COMMUNICATION
Article 26 Measures shall be taken to ensure that
members of the peoples concerned have the opportunity to acquire education
at all levels on at least an equal footing with the rest of the national
community.
Article 27 1. Education programmes and
services for the peoples concerned shall be developed and implemented in
co-operation with them to address their special needs, and shall
incorporate their histories, their knowledge and technologies, their value
systems and their further social, economic and cultural aspirations. hey
shall participate in the formulation, implementation and evaluation of
plans and programmes for national and regional development which may affect
them directly.
2. The competent authority shall ensure the training
of members of these peoples and their involvement in the formulation and
implementation of education programmes, with a view to the progressive
transfer of responsibility for the conduct of these programmes to these
peoples as appropriate.
3. In addition, governments shall recognise
the right of these peoplesto establish their own educational institutions
and facilities, provided that such institutions meet minimum standards
established by the competent authority in consultation with these peoples.
Appropriate resources shall be provided for this purpose. Article
28
1. Children belonging to the peoples concerned shall,
wherever practicable, be taught to read and write in their own indigenous
language or in the language most commonly used by the group to which they
belong. When this is not practicable, the competent authorities shall
undertake consultations with these peoples with a view to the adoption of
measures to achieve this objective.
2. Adequate measures shall be taken to ensure that these peoples have
the opportunity to attain
fluency in the national language or in one of the official languages of the
country. 3. Measures shall be taken to preserve and promote the
development and practice of the indigenous languages of the peoples
concerned.
Article 29 The imparting of general
knowledge and skills that will help children belonging to the peoples
concerned to participate fully and on an equal footing in their own
community and in the national community shall be an aim of education for
these peoples.
Article 30 1. Governments shall adopt
measures appropriate to the traditions and cultures of the peoples
concerned, to make known to them their rights and duties, especially in
regard to labour, economic opportunities, education and health matters,
social welfare and their rights deriving from this Convention.
2.
If necessary, this shall be done by means of written translations and
through
the use of mass communications in the languages of these
peoples.
Article 31 Educational measures shall be
taken among all sections of the national community, and particularly among
those that are in most direct contact with the peoples concerned, with the
object of eliminating prejudices that they may harbour in respect of these
peoples. To this end, efforts shall be made to ensure that history
textbooks and other educational materials provide a fair, accurate and
informative portrayal of the societies and cultures of these peoples.
PART VII. CONTACTS AND CO-OPERATION ACROSS BORDERS
Article 32 Governments shall take appropriate
measures, including by means of international agreements, to facilitate
contacts and co-operation between indigenous and tribal peoples across
borders, including activities in the economic, social, cultural, spiritual
and environmental fields.
PART VIII. ADMINISTRATION
Article 33
1. The governmental authority responsible
for the matters covered in this Convention shall ensure that the
agencies or other programmes mechanisms exist to administer the programmes
affecting the peoples concerned, and shall ensure that they have the means
necessary for the proper fulfilment of the functions assigned to them.
2. These programmes shall include:
(a) The planning,
co-ordination, execution and evaluation, in co-operation with the peoples
concerned, of the measures provided for in this Convention; (b) The
proposing of legislative and other measures to the competent authorities
and supervision of the application of the measures taken, in co-operation
with the peoples concerned.
PART IX. GENERAL PROVISIONS
Article 34 The nature and scope of the measures to be
taken to give effect to this Convention shall be determined in a flexible
manner, having regard to the conditions characteristic of each country.
Article 35 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.
PART X. FINAL PROVISIONS
Article 36 This
Convention revises the Indigenous and Tribal Populations Convention, 1957.
Article 37 The formal ratifications of this
Convention shall be communicated to the Director-General of the
International Labour Office for registration. Article 38
1. This Convention shall be binding only upon those Members of
the International Labour Organization whose ratifications have been
registered with the Director-General.
2. It shall come into force
twelve months after the date on which the ratifications of two Members
have
been registered with the Director-General. 3. Thereafter, this
Convention shall come into force for any Member twelve months after the
date on which its ratification has been registered. Article 39
1. A Member which has ratified this Convention may denounce it
after the expiration of ten years from municated to the Director-General of
the International Labour Office for registration. Such denunciation shall
not take effect until one year after the date on which it is registered.
2. Each Member which has ratified this Convention and which does
not, within the year following the expiration of the period of ten years
mentioned in the preceding paragraph, exercise the right of denunciation
provided for in this Article, will be bound for another period of ten years
and, thereafter, may denounce this Convention at the expiration of each
period of ten years under the terms provided for in this Article.
Article 40 1. The Director-General of the
International Labour Office shall notifyall Members of the International
Labour Organization of the registration of all ratifications and
denunciations communicated to him by the Members of the Organization.
2. When notifying the Members of the Organization of the
registration of the second ratification communicated to him, the
Director-General shall draw the attention of the Members of the
Organization to the date upon which the Convention will come into force.
Article 41
The Director-General of the International
Labour Office shall communicate to the Secretary-General of the United
Nations for registration in accordance with Article 102 of the Charter of
the United Nations full particulars of all ratifications and acts of
denunciation registered by him in accordance with the provisions of the
preceding Articles.
Article 42 At such times as it
may consider necessary the Governing Body of the International Labour
Office shall present to the General Conference a report on the working of
this Convention and shall examine the desirability of placing on the agenda
of the Conference the question of its revision in whole or in part.
Article 43 1. Should the Conference adopt a new
Convention revising this Convention in whole or in part, then, unless the
new Convention otherwise provides:
(a) The rati involve the
immediate denunciation of this Convention, notwithstanding the provisions
of Article 39 above, if and when the new revising Convention shall have
come into force;
(b) As from the date when the new revising
Convention comes into force this Convention shall cease to be open to
ratification by the Members.
2. This Convention shall in any case
remain in force in its actual form and content for those Members which have
ratified it but have not ratified the revising Convention.
Article 44
The English and French versions of the
text of this Convention are equally authoritative.
This file is also found on the web site of the
University of Saskatchewan Native Law Centre.
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