Part I The United Nations Declaration on the Rights of Indigenous Peoples: Background, content and implementation According to ILO Convention No. 169, indigenous peoples are descendants of populations “which inhabited a country or geographical region during its conquest or colonization or the establishment of present state boundaries” and “retain some or all of their own social, economic, cultural and political institutions”.28 While not providing a definition, the Chairperson-Rapporteur of the Working Group on Indigenous Populations has listed the following factors that have been considered relevant to the understanding of the concept of “indigenous”: (a) Priority in time, with respect to the occupation and use of a specific territory; (b) The voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions; (c) Self-identification, as well as recognition by other groups, or by State authorities, as a distinct collectivity; and (d) An experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist.29 The Chairperson-Rapporteur stressed that these factors do not, and cannot, constitute a comprehensive definition and that it may not be desirable to derive a more precise definition of indigenous peoples but rather ensure that there is a room for the reasonable evolution and regional specificity of the concept of “indigenous” in practice.30 Debate over a definition of indigenous peoples has often focused on African and Asian indigenous peoples. In the Asian context, the term “indigenous peoples” is generally understood to refer to distinct cultural groups, such as “Adivasis”, “tribal peoples”, “hill tribes” or “scheduled tribes”, while some indigenous peoples in Africa are referred to as “pastoralists”, “vulnerable groups” or “hunter-gatherers”. In Africa, it is often argued that all African peoples are indigenous to Africa. This debate was addressed by the Working Group of Experts on Indigenous Populations/Communities in Africa which noted that a modern approach should put “less emphasis on the early definitions focussing on aboriginality” and instead emphasize: (1) Self-definition as indigenous and distinctly different from other groups within a state; (2) A special attachment to and use of their traditional land whereby their ancestral land and territory has a fundamental importance for their collective physical and cultural survival as peoples. (3) An experience of subjugation, marginalization, dispossession, exclusion or discrimination because of their different cultures, ways of life or modes of production than the dominant model.31 The above demonstrates that there is no universally-agreed definition of indigenous peoples. Despite the ongoing debate, the key criterion of self-identification as the expression of the right to self-determination of indigenous peoples is widely recognized today. The African Commission on Human and Peoples’ Rights agrees that the Endorois consider themselves to be a distinct people, sharing a common history, culture and religion. The African Commission is satisfied that the Endorois are a “people”, a status that entitles them to benefit from provisions of the African Charter that protect collective rights. The African Commission is of the view that the alleged violations of the African Charter are those that go to the heart of indigenous rights – the right to preserve one’s identity through identification with ancestral lands.32 28 Article 1(1). 29 E/CN.4/Sub.2/AC.4/1996/2, para. 69. 30 Ibid., para. 70. 31 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, adopted by the African Commission on Human and Peoples Rights at its 28th ordinary session (2005), pp. 92-93. 32 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, African Commission on Human and People’s Rights, 276/2003 (4 February 2010), para. 162. Chapter 1: Background to the Declaration | 7