The ILO’s Indigenous and Tribal Peoples Convention

The 1989 Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries of the International Labor Organization (commonly referred to as ILO 169) was written to pressure governments to enact special legislation for the rights of ‘Indigenous and tribal peoples’ to land, bilingual education, political and economic autonomy, and fair labour practices. ILO 169’s definition of the groups protected by the convention is relatively loose, applying to tribal peoples, Indigenous peoples, and peoples present prior to colonisation who have continued to retain ‘traditional’ cultural institutions (ILO, n.d.).

Land rights are central to the ILO 169, since without control over territory, Indigenous and tribal peoples have no control over their own development. ILO 169 also recognises that land is tied to maintaining cultural identity. The second part of the convention (Articles 13-19) deals explicitly with Indigenous land rights. Article 13 declares that governments need to respect the cultural and spiritual value that Indigenous peoples attach to their lands, territories, or both and, in particular, the collective nature of that relationship. The remaining articles make it unequivocally clear that Indigenous peoples are to be afforded their rights not just to land occupied by them, but also to areas that they had traditionally accessed for subsistence and other activities. Governments are required to safeguard and guarantee the protection of Indigenous rights to ownership and are called upon to adopt “adequate procedures within the national legal system to resolve land claims by the peoples concerned” (ILO, n.d.).

ILO 169 is potentially a powerful legal framework to protect Indigenous and tribal peoples from tourism-induced land grabs. Yet it suffers from very low uptake by the international community, with only 23 nation states having ratified the convention by October 2020. Most of the signatories to ILO 169 hail from Latin America, a region with the highest potential for applying theconvention. When applied to the tourism industry, it requires any tourism stakeholder that wants to acquire land — including government bodies — to pre-obtain the free, prior and informed consent (FPIC) of local communities. However, some tourism watchdogs have argued that a major weakness of ILO 169 is that injured parties, including Indigenous peoples, have no right to veto land acquisitions (IHRB and Tourism Concern, 2012).

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP)

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was negotiated between nation states and Indigenous peoples over a period of 20 years before being adopted by the UN General Assembly in 2007. The Declaration features 46 articles covering a wide range of human rights issues (United Nations, 2008). By 2016, nearly all UN member states supported the Declaration, following initial opposition by several settler colonial states, including the USA, Canada, New Zealand and Australia. The UNDRIP has been hailed as a landmark achievement by Indigenous peoples in obtaining international recognition of their rights to self-determination and right to land and other natural resource rights. While building on international human rights law, as a General Assembly Declaration the UNDRIP is not a legally binding instrument nor does it create a new set of rights for Indigenous peoples. Rather, the declaration builds on existing human rights standards and applies them to the particular situation of Indigenous peoples, with emphasis on the recognition of collective rights to Indigenous territories (see selected articles in Box 11.2).

Box 11.2 UNDRIP articles with particular relevance to the protection of Indigenous peoples’ collective rights to land and other natural resources

Article 10

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 25

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 26

  • 1 Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
  • 2 [...]
  • 3 States shall give legal recognition and protection to these lands, territories and resources.

Source: United Nations, 2008

The UNDRIP provides nation states with a comprehensive framework to reduce inequality and provide remediation when Indigenous peoples’ rights have been violated. A major strength of the Declaration as a tool of protection from tourism-related land grabs is its denouncement of all forms of forced relocation of Indigenous peoples, emphasising the explicit need for FPIC and just and fair compensation. As most governments have ratified the UNDRIP, they are legally bound to acknowledge, respect and formalise Indigenous land rights in ways that are inclusive of local conceptions of resource ownership, including such notions as the inseparability of people and land among many Indigenous groups. Yet, the document does not define the term ‘Indigenous peoples’, which limits its application in contexts, where governments do not acknowledge the concept of indi-geneity for their own Indigenous groups and have developed alternative classifications, such as ethnic minorities, hilltribes, ethnic nationalities or scheduled tribes.

Building on the UNDRIP, the Pacific Asia Travel Alliance (PATA) in association with the World Indigenous Tourism Association (WINTA) have developed their own set of principles (the Larrakia Declaration) for how Indigenous peoples want to engage with the tourism sector. The first two principles make explicit reference to Indigenous rights to land and natural resources (Box 11.3).

Box 11.3 The six principles of the 2012 Larrakia Declaration

  • 1 Respect for customary law and lore, land and water, traditional knowledge, traditional cultural expressions, cultural heritage that will underpin all tourism decisions.
  • 2 Indigenous culture and the land and waters on which it is based, will be protected and promoted through well-managed tourism practices and appropriate interpretation.
  • 3 Indigenous peoples will determine the extent and nature and organizational arrangements for their participation in tourism and that governments and multilateral agencies will support the empowerment of Indigenous people.
  • 4 Governments have a duty to consult and accommodate Indigenous peoples before undertaking decisions on public policy and programs designed to foster the development of Indigenous tourism.
  • 5 The tourism industry will respect Indigenous intellectual property rights, cultures and traditional practices, the need for sustainable and equitable business partnerships and the proper care of the environment and communities that support them.
  • 6 Equitable partnerships between the tourism industry and Indigenous people will include the sharing of cultural awareness and skills development which support the wellbeing of communities and enable enhancement of individual livelihoods.

Source: PATA and WINTA, 2015, p. 13

While it is important to acknowledge the particular need for protection of Indigenous peoples’ land in the context of tourism development, it needs to be recognised that many non-indigenous communities also have a deep connection with and dependency on their land and other communally shared resources and may be similarly at risk of displacement from tourism-related land grabs, as has been shown in several examples in this study. The following two subsections look at two sets of voluntary guidelines that are broader in scope and address the vulnerabilities of both Indigenous and non-indigenous populations.

 
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