'Identifying ‘Indigenous’ Peoples in International Law' by Ben Saul in
Indigenous Peoples And Human Rights: International And Regional Jurisprudence (Hart/Bloomsbury, 2016)
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various international and regional efforts to identify the ‘indigenous’ peoples and individuals entitled to the rights and protections that have been incrementally recognised and tailored to their needs.
It is roughly estimated that there are 370 million indigenous peoples in 90 countries, speaking 4,000 languages, and comprising around 5,000 distinct groups. Taken literally, the term ‘indigenous’ refers to the descendants of the first or original inhabitants of a place, in contrast to later arrivals from elsewhere with different cultures. As shown, however, this definition is deceptively simple and fails to capture the experience of other kinds of indigenous peoples, particularly in Africa and Asia. In world of startlingly diverse indigenous communities, and of governments with divergent political interests and ideologies, the question of who is indigenous has been notoriously difficult and controversial to resolve. There are political sensitivities amongst certain governments about recognising indigenous peoples. For example, quite a few Asian, African and Pacific governments have objected that indigenous peoples do not exist in their countries because all of their inhabitants can be said to be native or autochthonous there. The absence of a conclusive international law definition has not, however, precluded the international community from forging a workable, functional understanding of who is ‘indigenous’ – and thus who benefits from that status.
The issue of definition matters a great deal because legal definitions can determine who is entitled to rights in critical resources such land and water, to vote in elections for representative institutions, to exercise cultural practices and control over traditional knowledge, and so on. Definitions can equally identify obligations on governments to provide social services, or on mining, agricultural or fishing companies to negotiate with indigenous groups to access their resources. Internationally, law can determine who has access to international institutions and procedures for diplomacy, politics, legal standard setting, monitoring, and dispute resolution.
