(Final report of study on treaties, agreements and other construcctive
arrangements between States and indigenous populations)
INTRODUCTION
1. In Volume V (Conclusions, proposals and recommendations) of Mr. Martínez Cobo's
monumental Study of the Problem of Discrimination Against Indigenous Populations,
(Document E/CN.4/Sub.2/1986/7/Add.4 (also available as United Nations publication,
Sales No. E.86.xIV.3) the Special Rapporteur stressed the paramount importance for
Indigenous peoples and nations in various countries and regions of the world of the
treaties concluded with present nation-states or with the countries acting as colonial
administering powers at the time in question.
2. He concluded that a thorough and careful study should be made of various areas covered
by the provisions of such treaties and agreements, the official force of such provisions
at present, the observance, or lack of observance, of such provisions, and the
consequences all this may entail for Indigenous peoples and nation parties to such
treaties or agreements.
3. He further noted that in preparing such a study, account must necessarily be taken of
the points of view of all parties involved, a task requiring the examination of an
extremely large quantíty of documentation. For obvious reasons, this was an undertaking
that could not be carried out within the framework of his own Study.
4. He therefore recommended that a thorough Study devoted exclusívely to thís subject
should be undertaken in light of exísting principles and norms in the field and the
opinions and data submitted by all interested parties, primarily the Governments and
Indigenous nations and peoples that signed and ratified treaties or agreements. He
believed that only a thorough study could help determine with the necessary accuracy the
present status of international agreements involving Indígenous peoples.(Ibid., paras.
388-392.)
5. Taking up an initiative of its working Group on Indigenous Populations, (Document
E/CN.4/Sub.2/1987/22, Annex 1 (Recommendations to the Sub-Commission) , Recommendation 3.)
at its thirty-ninth session, the Sub-Commission on the Prevention of Díscrimination and
Protection of Minorities acted upon Mr. Martínez Cobo's recommendation by adopting
resolution 1987/17 of 2 September 1987, entítled Study on treaties concluded between
Indigenous peoples and States. In taking such action, the Sub-Commission was
consístent with its resolution 1984/35-A of 30 August 1984, in whích it had decided to
consíder Mr. Martínez Cobo's conclusions, proposals and recommendations as an
appropriate source for íts future work on the question of discrímination against
Indigenous populations and for the work of its Working Group on Indigenous Populatíons.
6. In its resolution 1987/17, the Sub-Commission requested Mr. Miguel Alfonso Martínez
"to prepare, on the basís of the opinions and data in Mr. Martínez Cobo's report
and the views expressed on thís íssue in the workíng Group ... and in the
Sub-Commission, a document analysing the general outline of such a study and the
juridical, bibliographical and other information
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sources on which such a study should be based, and to submit the document to the
Sub-Commission for consideration at its fortieth session."
7. The resolution also recommended that the Commission on Human Rights recommend, in turn,
that the Economic and Social Council (ECOSOC) authorise the Sub-Commission to appoínt Mr.
Alfonso Martínez as Specíal Rapporteur with the mandate of preparing such a study, and
to request the Special Rapporteur to present a preliminary report to the Sub-Commíssion
at its forty-first sessíon (1989). The recommendations contained in resolution 1987/17
were submitted for consideration to the Commission on Human Rights at its forty-fourth
session (1988).
8. At its forty-fourth session, the Commission adopted resolution 1988/56, in which a
number of guidelínes on this matter were established. These would eventually become the
terms of reference for the Special Rapporteur's mandate for the present Study.
9. It should be noted that in adopting resolution 1988/56, the Commission broadened
to a considerable extent the scope of the Study originally envisaged by the Sub-Commission
in its resolution 1987/17, by recommending that ECOSOC authorise the appointment of Mr.
Alfonso Martínez as Special Rapporteur,
with the mandate of preparing "an outline on the possible purposes, scope and sources
of a study to be conducted on the potential utility of treaties, agreements and other
constructive arrangements between Indigenous populations and Governments for the purpose
of ensuring the promotion and protection of the human riqhts and fundamental freedoms of
Indigenous populations." (Emphasis added)
10. Further, in adoptíng said resolution the Commission only authorised the Special
Rapporteur to prepare and submit to the working Group an outline of a possible study, not
to undertake the Study proper, as recommended by tbe Sub Commission. In fact, it withheld
its authority, at least until 1989, to decide the convenience of commissíoning such a
Study by the Special Rapporteur.
11. Commission resolution 1988/56 was endorsed on 27 May 1988 by ECOSOC in its decision
1988/134.
12. The Special Rapporteur complied with the request and submitted the outline (Document
E/CN. 4/Sub.2/1988/24/Add.l.) to the working Group and the Sub-Commission later in 1988.
Both bodies endorsed that document. In additíon, in its resolution 1988/20 of 1 September
1988, the Sub-Commissíon also requested the Commission and ECOSOC to finally authorise
the Special Rapporteur to undertake the Study referred to in the above-mentioned
Commission resolution 1988/56.
13. At its forty-fifth session, the Commission adopted --without either debate or vote--
resolution 1989/41 of 6 March 1989, by which it endorsed all the recommendations submitted
on this matter by the Sub-Commission in resolution 1988/20. They were thus submitted for
approval to the 1989 ECOSOC spring session.
14. Finally, ECOSOC formally authorised the beginning of thís Study and confirmed the
appointment of this Specíal Rapporteur for this undertaking by resolution 1989/77 of 24
May 1989.
15. From that date on, the Special Rapporteur has submitted to the working Group and the
Sub-Commission a preliminary report (Document E/CN.4/Sub.2/1991/33.), and three progress
reports. (Documents E/CN.4/Sub.2/1992/32, E/CN.4/Sub.2/1995/27 and E/CN. 4/Sub.2/1996/23.)
16. At its forty-ninth session the Sub-Commíssion adopted decision 1997/110 of 22 August
1997 by which it requested the Special Rapporteur to submit his Final Report in due time
(preferably before the end of 1997) so as to be examined by the working Group at its
sixteenth session and by the Sub-Commission at its fiftieth session in 1998. This Final
Report is submitted to the consideration of both bodies pursuant to the above mentioned
Sub-Commission resolution 1997/110.
17. As to the contents of thís Final Report, it should be recalled, first, that the
Special Rapporteur suggested from the start of his mandate a three-part structure for
the Study as a whole.
18. The first part was to analyse the origins of the practise of concluding
treaties, agreements and other constructive arrangements between Indigenous peoples and
States, that is, the role of treatíes in the history of European expansion overseas. The
second part was to be devoted to the contemporary significance of such instruments,
including questions regarding the succession of States, national recognition of treaties,
and the views of Indigenous peoples en these issues. The third part was to address
the potential value of all those instruments as the basís for governing the future
relationships between Indigenous peoples and States. Both the form and substance of such
instruments were to be considered in the final stage of the Study, as well as possible
mechanisms to be institutionalized in the future, to secure their implementation.
(E/CN.4/Sub.2/1988/24, Add. 1, paras. 21-23.)
19. This final part, obviously, had to be undertaken in the light of the actual situations
under which Indigenous peoples find themselves coexisting today with other, non-indigenous
segments of the society in many States.
It is precisely the precarious nature of their existence almost everywhere, that today
provokes --as it did when Martínez Cobo's report was commissioned and completed-- growing
concern in the international community.
20. Largely, the Special Rapporteur's research and analysis basically bear out his initial
plan as far as the first two parts of the Study, as a whole, are concerned.
21. Obviously, at this final stage of the Special Rapporteur's work on the Study,
particular attention shall be given to the potential value of all possible ways and means
to achieve a new relationshíp between the Indigenous and non-indigenous sectors in
multinational societies through adequate forward looking, innovative mechanisms that would
facilitate conflict-resolution when needed.
22. That the Special Rapporteur has been working on this Study for nine years and the fact
that this, its Final Report, should be able to stand on its own with respect to
publication by the United Nations has made certain inclusions necessary. The Special
Rapporteur has therefore briefly recapitulated here the most ímportant provisional
conclusions advanced in previous progress reports, as well as certain references to the
initial (or modified) reasoning behind them. He has also included some references to key
cases or general situations fully reviewed in those reports. Without this background it
would be difficult to fully grasp the sense and possible merit of the Conclusions and
Recommendatíons offered here.
23. Consequently, Chapter I deals with four main topics: the process of selecting
(and eliminating) cases relevant to this Study; treaty and treaty making concepts; the
importance of fully understanding the evolution of the Indigenous/non-indigenous
relatíonship and its present situation, and defining and differentiating between the
categories "Indigenous peoples" and "minoritíes" In Chapter II,
the Special Rapporteur offers his views on the three juridical situations selected for
their pertinence to the goals of thís Study, focussing on the individual cases/situations
selected for review in consideration of their juridical/institutional development. Chapter
III describes the overall process of domestication of Indigenous issues in its
varíous manifestations during different stages and links it to the present situation of
Indigenous societies. Finally, Chapter IV brings all those elements included in
prevíous chapters together, to offer his Conclusions and Recommendations for a look at
what he considers might be a constructive approach to the future.
24. Lastly, a final remark about the contents of this Report.
25. It is worth underlining that the Specíal Rapporteur is fully aware that he --and only
he-- is ultimately responsible for the content of the Conclusions and Recommendations
wíth which the present Study will end. However, he is also aware that all human endeavour
may contain flaws, shortcomings, and other defects, and thus cannot but benefit from
constructive criticism.
26. In this context, it can never be overemphasized that in many aspects and cases
reviewed, the final result of these long years of work --as reflected in this document--
is based, in the end, on the research (including field work) , the personal and
professional experiences, and, in particular, the criteria on the available sources that
has been developed by onlv two persons: the Special Rapporteur, himself, and his
Consultant, Dr. Isabelle Schulte Tenckhoff --to whom he once again expresses hís full
gratítude for her invaluable collaboration.
27 Hence, the Special Rapporteur will highly welcome all critical opinions --not only from
his colleagues but also, in particular, from those Indigencus peoples and Governments
which did not respond to his questionnaire- that may arise during the debate that will be
held on the contents of this Final Report at the forthcoming 1998 sessions of both the
working Group and the Sub-Commission.
28. These contributions will be duly taken into account for their potentíal utilization
as additional elements of judgment to be incorporated into this Report before it becomes
an offícial United Natíons publication.
29. In this Final Report, the Special Rapporteur wishes to express gratitude to all the
Governments that responded to the questionnaire sent them in 1991 and 1992; in particular
those of Australia and Canada for the thoroughness with which they díd so and the
valuable documentation provided either at their own initiative or upon request. He also
thanks the Governments of Canada, Chile, Spain, the United States, Fiji, Guatemala, and
New Zealand for grantinq the facilities needed to carry out field research, or to
participate in activities related to Indigenous questions in their respective countries.
30. The careful attentíon and efficíency with whích the New Zealand authorities
prepared and coordinated the Special Rapporteur's programme of activities during his
official workíng visit to that country in May 1997, and the fact that some of its highest
authorities (e.g., the Ministers of Foreign Affairs and Justice) were gracíous enough to
fínd time to receive him personally and discuss issues affecting the Maaori people, merit
his special recognition.
31. This Study could not have been concluded without the cooperation of many Indigenous
peoples, organisations and authorities, who have offered the Special Rapporteur, not only
their invaluable contributíons (oral and written testimony, documentation, and much
needed logistics of the most varied kind) but also constant encouragement in thís work.
32. Even at the risk of possíble regrettable omissíons, it is just to mention here the
support received from, among others, the following Indigenous organizations and
institutional bodies: American Indian Law Alliance, Four Nations of Hobbema, Fund of the
Four Directions, Grand Council of the Haudenosaunee Confederacy, Consejo de Todas las
Tierras de la Nación Mapuche, Grand Council of the Crees (of Québec), Fundación
Rigoberta Menchú, International Indian Treaty Council, Assembly of First Nations
(Canada), Western Shoshone National Council (USA) , Maaori Legal Services, Teton Sioux
Treaty Council, Ka'laui Hawaii, International Organization of Indigenous Resource
Development, OXFAM and DOCIP (Geneva).
33, His gratitude also goes to the authorities (elders, lonkos, Grand Chiefs and
Chiefs, headmen, councilors, and advisers) of diverse Indigenous nations/peoples or their
organizations; among them, Rigoberta Menchú Tum (Maya Nation) , Oren Lyons (Onondaga
Nation) , Matthew Coon Come and Ted Moses (Crees [of Québec]) , Tony Blackfeather (Teton
Sioux/Lakota Nation), J. Wilton Littlechild (Four Nations of Hobbema/Canada), Domingo
Cayuquo, Manuel Antilao, Jorge Pichinual, Juana Santander, and Aucan Huilcamán (Mapuche
Nation) , Ovide Mercredi (Assembly of First Natíons/Canada), Cherrilene Steinhauer and
Carl Queen (Saddle Lake First Nation/Canada), Wallace Fox (Onion Lake First
Nation/Canada), Felix Lockhart (Dene Nation/Canada), Sharon Venne (Lubicon Cree
Nation-Joseph Bighead First Natíon-Treaty Six Nations/Canada), Juan León (Maya Nation),
Ingrid Washinawatok (Fund of the Four Directions), Ken Deer (Mohawk Nation), Lázaro Pary
(Aymará Nation), Bill Means, Antonio González, Jimbo, and Andrea Carmen (I.I.T.C.),
Mililaní Trask (Hawaii), Al Lameman (Beaver Lake Tribal Administration), Kent Lebsock
(American Indian Law Alliance), R. Condorí (C.I.S.A.), Pauline Tangiora, Minhinnick
Nganeko, Aroha Pareake Mead, Moana Jackson, Dr. Margaret Mutu, Sir Tipene O'Regan, Sir
Robert T. Mahuta, Moana Erickson and Shane Solomon (Aotearoa/New Zealand), and Leif
Dunfield (Saami Nation) . All of them gave the Special Rapporteur most valuable
information and insights on their respective peoples/nations and organizations.
34. The Special Rapporteur cannot leave unmentioned his gratitude to other Indigencus and
non-indigenous individuals --all with recognized authority in diverse aspects of the
Indigenous problematique and active, in general, in United Nations circles-, who
have lent theír knowledge, practical experience, and/or incisive, constructive criticism
to the Special Rapporteur's work.
35. Gudmundur Alfredsson (both in his past functions in the Centre for Human Rights, as
well as in his capacity as a scholar specializing in this question) , Augusto Willemsen
Díaz, Chief Justice E. Durie (of the Waitangi Tribunal) , Mario Ibarra, Jacqueline
Duroure, Andrew Gray, Paul Coe, Renate Dominick, Robert Epstein, Florencia Roulet, Sir
Paul Reeves, Anthony Simpson, Alberto Saldamando, and Professors Vine Deloria, Héctor
Díaz Polanco, Michael Jackson, Gaston Lyon, Glenn Morris C.M. Eya Nchama, Douglas
Sanders, Mason Durie, Jim Anaya, José Bengoa (his colleague in the Sub-Commission) and
the late Howard Berman, merit special thanks for their worthy academic contributions. None
of them, of course, bear any responsibility whatsoever for the possible flaws in the
various progress reports submitted on the Study, or in this Final Report itself.
36. Last but not least, the very heartfelt gratitude of the Special Rapporteur for the
specialized assistance, patience and logistical cooperation provided by all those who
regularly, or at one time or another, have served on the minuscule Unit/Task Force to
which the Centre for Human Rights has assigned responsibility for Indigenous affairs. The
diligence and the extreme professionalism with which they so effectively fulfilled their
functions in terrns of this Study (sometimes under truly excruciating conditions) , have
been simply exemplary.In this regard, their head, Mr. Julian Burger and his highly
efficient colleague, Ms. Miriam Zapata have, over long years, earned the total respect of
the Special Rapporteur.