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Constitutions and Indigenous PeopleThe position of indigenous peoples is very different from country to country, and reading about the law or constitution of any other country it is important to try to understand the background. The small pieces of information and links that are included here should therefore be used with great care. You will find snippets of information about the following countries, following a General section: Australia Bangladesh Bolivia Brazil Canada Fiji Finland India Indonesia Mexico Myanmar Peru Philippines Russia Thailand USA Venezuela General
Below is a list of some of the countries that have indigenous peoples, and some information about what, if anything, those countries constitutions contain on the subject - this work in progress and will be added to, so there is no information about the constitutions of some of the countries.
Australia The position of Aboriginal people in Australia is in many ways very unfortunate, as is widely known. It is also important to remember that in Nepal there are other communities, such as the Dalits, with a history of discrimination, while in Australia the Aboriginal community is both small and the most deprived community in the country. The Constitution dates from a time when no respect at all was given to the indigenous peoples. In recent years there has been discussion of the topic, however, though there have been no amendments to the Constitution other than giving the national government the power to make law for all Aborigines in 1967. See the papers listed above. An organization called the Foundation for National Renewal has been carrying out an exercise on drafting a Model Constitution: Bangladesh Bangladesh has a considerable number of indigenous groups, but its constitution makes no mention of them. The approach of the country has been very much one of assimilation.
Bolivia Bolivia's Constituent Assembly, elected following the election of the first President of the country from an indigenous community, recently adopted a new Constitution - which must now go to a referendum. The constitution making process has been very divisive, unfortunately. Even in 2004 it had amended its constitution and included various mentions of indigenous peoples.
Brazil Canada The Constitution Act of 1867 mentioned indigenous peoples only to list "Indians, and Lands reserved for the Indians" in the legislative powers of the national government. But the 1982 Act does include a commitment to involve the indigenous Peoples in constitution making. Fiji The Fiji Islands indigenous peoples ar a majority and generally hold political power (at present the Constitution is largely suspended due to a coup in 2006, headed by an indigenous Fijian). The Constitution includes a good deal of material on Fijian rights including recognising personal laws, and also the followig exception to equality principles in the Human Rights chapter:
(8) A law, or an administrative action taken under a law, may limit a right or freedom set out in this section for the purpose of:
i. to the holding, use or transmission of, or to the distribution of the produce of, land or fishing rights; or ii. to the entitlement of any person to any chiefly title or rank; (b) imposing a restriction on the alienation of land or fishing rights held in accordance with Fijian or Rotuman custom or in accordance with Banaban custom; or (c) permitting the temporary alienation of that land or those rights without the consent of the owners. (9). To the extent permitted by subsection (10), a law, or an administrative action taken under a law, may limit a right or freedom set out in this section for the purpose of providing for the governance of Fijians or Rotumans or of the Banaban community and of other persons living as members of a Fijian, Rotuman or Banaban community. (10). A limitation referred to in subsection (9) is valid only if it:
(b) does not infringe a right or freedom set out in any other section of this Chapter. Finland Article 17 of the Finnish Constitution says:
India India does not use the expression "indigenous people" but refers to tribes or tribals. It does have a number of special provisions: reservation in legislatures and also in local government bodies, the possibility of reservations for education and for positions on the public service. Indonesia Indonesia is another country that has had problems recognizing the rights of indigenous people. One article says: "The 1945 Constitution of Indonesia recognized the indigenous peoples. Clause 3 of Article 28I provides that "The cultural identities and rights of traditional communities shall be respected in accordance with the development of times and civilisations." However, through Presidential Instruction No. 26 of 1998, the government banned the use of the terms "indigenous" and "non-indigenous" in all official documents."
The newly amended Constitution also regulates the state recognition of and respect for regional administration units, which is special and extraordinary in character". Special autonomy has been granted to some provinces, after conflict, including Aceh and Papua. How successful the Law for Papua has been is controversial. Mexico
Myanmar Myanmar has not been a constitutional state for most of its existence. It does have a Constitution but it also has a military government. In the 1974 Constitution there are various provisions for the protection of languages, culture and interests of the "races". But many indigenous groups have been unhappy with their position in the country and have in some instances waged a long civil war. Not the Convention selected by the national Government has produced a draft Constitution (not yet published). At the same time some indigenous groups have been holding their own convention and constitution making processes - outside the country. Peru Philippines A good summary of the constitutional position in Philippiens is found on the IWGIA website: The 1987 Constitution has several provisions of relevance to indigenous peoples, which it calls "indigenous cultural communities" (ICC).
Russia The Constitution of the Russian Federation provides: Article 69 [Indigenous Rights] The Russian Federation guarantees the rights of small indigenous peoples in accordance with the generally accepted principles and standards of international law and international treaties of the Russian Federation. The Saami people have commented that " Although the Russian Constitution gives indigenous people certain rights, including the right to land and natural resources in their own regions, without the necessary political and legal implementation measures these rights do not have much practical value for the people concerned." This quotation is taken from a submission by the Saami to the Sub-Commission on Prevention of Discrimination and Protection of Minorities Working Group on Indigenous Populations (1997) Thailand USA When it was founded the US did not view indigenous peoples as citizens. Indeed the Constitution specifically mentions "Indian not taxed" as not being among citizens for the purposes of tax allocation. "Indian tribes" were viewed as outside the union - and trade with them was a matter for the national government. Of course at that time many territories in which Indian tribes resided were yet included in the USA. Venezuela The rights of indigenous peoples were recognized in a constitution in 1999. They had originally been recognized in 1811 but later constitutions had been less supportive of indigenous rights. |
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