Editors --- "Report of the Expert Seminar on Practical Experience - Regarding Indigenous Land Rights and Claims- The Whitehorse Conclusions And Recommendations- On Indigenous Land Rights And Claims - Digest" [1997] AUIndigLawRpr 19; (1997) 2(1) Australian Indigenous Law Reporter 187

Report of the Expert Seminar on Practical Experience
Regarding Indigenous Land Rights and Claims
The Whitehorse Conclusions And Recommendations
On Indigenous Land Rights And Claims

At the invitation of the Government of Canada, an Expert Seminar on Practical Experiences Regarding Indigenous Land Rights and Claims was held at Whitehorse, Canada, 24-28 March 1996. The Expert Seminar was part of the programme of activities for the International Decade of the World's Indigenous People approved by the General Assembly in its resolution 49/219 of 23 December 1994. Invited participants included Governments, representatives of Indigenous organisations, representatives of UN organs and specialised agencies, as well as resource persons. The conclusions of and recommendations adopted by the Expert Seminar (UN Doc E/CN4/Sub2/AC4/1996/6) on 29 March 1996 are reproduced below.

The United Nations Expert Seminar on Practical Experiences Regarding Indigenous Land Rights and Claims meeting at Whitehorse, Canada, from 24 to 28 March 1996, bearing in mind and building upon the important work already accomplished by the United Nations system, in particular in the area of standard-setting and within the context of other meetings and expert seminars such as the expert meeting on indigenous self-government held in Nuuk, Greenland, and taking into account the new partnership between indigenous peoples and the international community based on mutual respect, reciprocity and harmonious, accessible and equitable processes, offers the following conclusions and recommendations for the consideration of Governments, indigenous peoples and their organizations, and intergovernmental and non-governmental organizations:

1. Indigenous peoples have a distinctive spiritual and material relationship with their lands, and with the air, waters, coastal sea, ice, flora, fauna and other resources.

2. The importance of the issue of the link between self-determination and the right to land is recognized.

3. The promotion and protection of rights over lands and resources of indigenous peoples are vital for their development and cultural survival.

4. Indigenous peoples continue to be affected by the consequences of colonialism and are often deprived of a land and resource base.

5. The recognition of the rights of indigenous peoples to specific lands which they occupy cannot be separated from the recognition of other rights, within larger areas necessary for their material and cultural development.

6. The existence of a fair constitutional and legal system, including a fair judicial system, able to guarantee
due process of law is an important framework for the success and implementation of land settlement processes. In some countries experience has shown that the establishment of fair judicial processes for the implementation of treaties, agreements and other constructive arrangements with indigenous peoples has been a useful
means towards achieving the respect of such agreements and the education of the indigenous and non-indigenous communities.

7. Experience has shown that the equitable and fair conclusion and implementation of treaties, agreements and other constructive arrangements relating to land between States and indigenous peoples can contribute to environmentally sound and sustainable development for the benefit of all.

8. Land rights and compensation issues arising from the taking or use of indigenous lands for military or security purposes, whether in war or peacetime, can raise special problems, which need to be addressed by Governments and the international community.

9. Where land agreements are intended to protect the way of life or cultural integrity of indigenous peoples, social issues should be given equal emphasis to economic and resource issues.

10. Political will, in the form of a genuine commitment on the part of Governments, to partnership in decision-making is essential to the success of co-management regimes, and to the avoidance of adversarial relations between the parties to such regimes.

11. It is important that practical effect be given to the spirit and intent of treaties and land agreements. This requires a willingness by the parties to act as partners, not adversaries, as well as a clear understanding of the spirit and intent of treaties and land agreements by all parties.

12. Where the division of indigenous lands and attempts to divide these lands through individual titles as well as the existence of land privatization policies menace the material and cultural survival of indigenous peoples, this is a matter of grave concern.

13. There is a need to inform the non-indigenous public about the significance of indigenous land rights for the very survival of indigenous peoples and the respect of their human rights. Land agreements are a way of building new constructive relationships between indigenous and non-indigenous communities.

14. The International Decade of the World's Indigenous People is an important vehicle for substantive participation of indigenous peoples in the resolution of land settlements and for increasing constructive partnerships with States and non-indigenous communities.

15. International Labour Organization Convention No. 169 is regarded by indigenous peoples as articulating some minimum standards respecting indigenous land rights. "The draft United Nations declaration on the rights of indigenous peoples", as adopted by the Sub-Commission on Prevention of Discrimination and Protection of Minorities, could be considered an opportunity for States to adopt an instrument reflecting a broad consensus among indigenous peoples about their land and resource rights.

16. The implementation of sustainable development should take fully into account indigenous peoples, values, knowledge and technologies, in order to ensure resources for future generations.

17. Principles or guidelines for land selection or demarcation of indigenous lands should be jointly negotiated in a fair and equitable process and without the imposition of arbitrary criteria.

18. Interim protection measures, such as moratoriums on land transfers and on implementation of proposed development projects, should be taken, as necessary, to protect indigenous lands or lands claimed by indigenous peoples from environmental degradation and alienation to third parties. Such measures would contribute to an atmosphere of good faith and to a constructive spirits in the negotiation process.

19. Effective measures for implementation dispute resolution, amendment and enforcement of land settlements and agreements should be provided.

20. There is serious need for training, education and the required resources so that indigenous peoples may enter negotiation processes fully informed about and technically equipped for the whole spectrum of implications of land rights negotiations. Training and education should also figure prominently in settlements implementation.

21. The equal participation of indigenous women should be reflected in all aspects of negotiation and implementation of land agreements.

22. Land rights settlements should be freely negotiated, in good faith, and not imposed unilaterally by legislation or negotiated under duress or threat.

23. It should be recognized that indigenous resource management ensures the sustainability for future generations and is rich in practical applications of wildlife, fish and habitat conservation.

24. Parties in land rights negotiations should make particular efforts to ascertain and act upon the views of elders in these matters.

25. Governments should renounce discriminatory legal doctrines and policies which deny human rights or limit indigenous land and resource rights. In particular they should consider adopting corrective legislation and policies, within the International Decade, regarding the following:

(a) The doctrine of terra nullius;

(b) The doctrine that indigenous communities do not have the capacity to own land or to own land collectively;

(c) The doctrine that indigenous land, rights, title or ownership may be taken or impaired by the State or third parties without due process of law and adequate and appropriate compensation;

(d) Doctrines or policies according to which indigenous lands must be held in trust regardless of the will of the indigenous peoples concerned;

(e) Doctrines and policies imposing an extinguishment of indigenous land rights, title or ownership;

(f) Policies which exclude some indigenous peoples from the land claims processes established by the State.

26. Governments, with indigenous peoples, should establish fair procedures for reviewing situations and for
taking corrective action in situations in which indigenous land or resources have been taken or extinguished through processes which are claimed or are found to be fundamentally unfair or discriminatory.

27. Governments have a responsibility to ensure that indigenous peoples have access to adequate resources to research and negotiate their claims so that settlements are equitable, just and enduring.

28. The structure, mandate, objectives, representation and accountability of members and mode of operation, including funding, of co-management structures should be determined through a process of negotiation with the indigenous parties to support the principle of equal participation.

29. Parties should negotiate on a basis of equality acknowledging indigenous leadership, structures, languages, and social and legal systems in all aspects of the negotiations and implementation. For example, every effort must be made for agreements relating to land rights to be drafted in the language of the indigenous peoples concerned and for the indigenous language version to have equal status with the State language versions.

30. Governments should recognize the lands rights and titles of indigenous peoples and implement effective and appropriate procedures and mechanisms, including constitutional, legal or treaty agreements.

31. Throughout the whole process, the procedures for the recognition of these rights should provide for the effective representation and informed participation of indigenous peoples as equals. Without this, any legislation or treaty on this matter constitutes an imposition and not an enduring agreement.

32. States should make their best efforts to guarantee access to land of indigenous peoples deprived of land or who lack sufficient land and depend upon it for their survival, in order to guarantee their cultural and material development. Mechanisms such as land funds and claim settlements processes where they exist are encouraged.

33. Governments should review their laws and policies in order to address the concept of the inherent rights to self-government and self-management of indigenous peoples.

34. Governments are urged to consider the establishment of impartial mechanisms to oversee and facilitate fair and equitable conclusions to land claims processes and the implementation of land agreements, including international mechanisms as necessary.

35. Governments should welcome, encourage and open up trade among indigenous peoples and other parties from different countries and facilitate such trade.

36. In its consideration of the establishment of a permanent forum for indigenous peoples, the United Nations General Assembly should consider whether the forum could play a constructive role regarding problems pertaining to land rights.

37. The United Nations should prepare a study involving the direct participation of indigenous experts on the issue of extinguishment of land rights and its implications, with a view to recommending new approaches in this area with particular regard to the recognition and implementation of rights.

38. The United Nations and its specialized agencies should consider providing technical assistance to States and indigenous peoples to contribute to the resolution of land claims.

39. The World Bank should consider providing loans to indigenous peoples directly, in particular in relation to collectively owned land.

40. The United Nations system, before funding demarcation projects, should have adequate consultative mechanisms at all stages of the planning and implementation of projects.

41. Military and occupation practices, carried out by Governments individually or collectively, which have an impact on the ways of life of indigenous peoples should be open to international consideration in accordance with international human rights standards. The impact on lands and the ways of the life of indigenous peoples should be subject to appropriate environmental review in conjunction with indigenous peoples.

42. International cooperation in support of the administrative management of their lands and resources should be done in full cooperation with indigenous peoples.

43. Indigenous peoples should participate in decision-making and policy regarding land, resources and development at international, regional, national and local levels, including United Nations processes such as the Commission on Sustainable Development and the Convention on Biological Diversity.

44. The United Nations, its specialized agencies and other intergovernmental organizations should assure that indigenous peoples' cultural diversity, traditional values and ways of life are protected in line with Agenda 21 and the institutions established for its follow-up.

45. For the purpose of developing the resources of indigenous peoples and communities, States and intergovernmental organizations which provide international aid for such purposes should make their best efforts to provide development assistance through organizations of indigenous peoples.

46. The United Nations, in the framework of the International Decade, should consider holding further consultations, workshops and seminars relating to indigenous land rights and interests focusing on issues such as the negotiation process, co-management regimes and other matters.

47. The United Nations system should consider ways and means of harmonizing existing guidelines relating to indigenous peoples.

48. The United Nations system should place emphasis on comparative policy work relating to indigenous land titling.

49. The Centre for Human Rights should consider collecting examples of indigenous land agreements to facilitate the promotion of technical cooperation in this field.

50. The United Nations system should consider creating indigenous advisory councils at all levels, including the regional level, to provide possibilities for indigenous participation in project and programme planning and implementation.

51. The International Labour Organization should encourage systematic analysis by indigenous organizations of articles of its Indigenous and Tribal Peoples Convention, 1989 (No. 169).

52. The International Labour Organization's Committee of Experts should clarify the interpretation of article 14, paragraph 1, of International Labour Organization Convention No. 169.

53. The United Nations system should organize training workshops for representatives of indigenous organizations, in particular on questions relating to land.

54. The United Nations system should consider how the Guatemalan Agreement on Identity and Rights of Indigenous Peoples can provide guidance in other situations.

55. The Expert Seminar requests that the present report be submitted to the fourteenth session of the Working Group on Indigenous Populations and annexed to the Secretary-General's report on the International Decade to be presented to the fifty-first session of the General Assembly and that it be published and given the widest possible dissemination.