“Here we don’t have black people because the colonial elite was poor and couldn’t afford slaves,” a Chilean official commented while I was in Santiago. Three days later, in a workshop with civil society leaders in Temuco, four women introduced themselves as representatives of Afro-Chilean organizations. Similarly, in Peru, while the government classifies rural Andean communities as peasants, they are fighting to be recognized as indigenous peoples.
What does the Chilean official’s statement have in common with the Peruvian government’s position on indigenous people? They both revolve around the definition of who is who for the purpose of racial and ethnic inclusion. By defining who is indigenous or who is “tribal,” governments grant or deny rights to communities who are demanding policies from prior consultation to higher education affirmative action programs.
1. Who is who in international law
ILO Convention 169 is the principal instrument that defines who is considered indigenous or tribal under international law (See table below). Thus, States must use the Convention’s definition to determine whether there are indigenous or tribal peoples within their territory.
What States must do is simple. When an indigenous or tribal group proclaims their self-identification as such, the State should then determine whether the objective criteria is met. If the community fulfills both the objective and subjective criteria, the State must recognize it as a collective people distinct from the majoritarian society. Thus, in the case of Convention 169, the State must grant them the right to free, prior, informed consultation.
2. Who is who in free, prior, informed consultations?
In Global South countries, discussions regarding who is indigenous or tribal to determine who has the right to FPIC are on the rise. One of the main reasons for this increase is that many Global South economies depend on natural resources that are located in territories that indigenous and tribal people have traditionally used. Therefore, recognizing the existence of these peoples means the States must also recognize their right to FPIC, and consult with them regarding economic projects the State wish to undertake in their territories. To date, the method of balancing this discussion has been disappointing.
Peru is a perfect example. In order to define who is indigenous, Peru passed a law that violates the right to FPIC and the recognition of indigenous people, as it establishes additional requirements than those included in Convention 169 to determine who is indigenous.
In addition to the subjective and objective international law criteria, this norm establishes that to be considered indigenous, communities must live on their ancestral land and speak their traditional language. This extra criteria means that many communities in the Peruvian Andes that self-identify as indigenous are not considered as such.
The effects of this norm can already be seen in practice. Recently, the Office of Prior Consultation of the Vice Minister of Multiculturalism announced that there are 50 Amazonian tribes and 4 Andean tribes in the country. Nonetheless, CEPALhas stated that there are 85 indigenous groups in Peru.
These numerical differences indicate that the government’s criteria is reductionist and leaves various communities without legal protection. For example, according to Juan Ruíz, of the Institute for Legal Defense, the government left out the o k’ana people from the Espinar province in Cuzco. Not coincidentally, this community lives in the territory where one of the largest copper mines, formerly Xtrata Tintaya and now Glencore and Hudvay, is located.
Although this April 23 the Supreme Court will rule on the legality of this norm, with input from Dejusticia and a coalition of other organizations, the question of who is indigenous is still unanswered in most of the Global South. In Brazil, the debate regarding whether river-dwelling communities that subsist on plants they collect from the Amazon should be considered tribal. The same is occurring in Kenya, where communities such as the Endorois struggle to be recognized as indigenous and for their FPIC rights. What is more important to States remains to be seen: compliance with international law, or the desire to exploit natural resources in indigenous peoples’ lands.
*Carlos Andrés Baquero is a researcher at The Center for the Study of Law, Justice and Society (Dejusticia).