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Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
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Nettheim, Garth --- "Geneva: Revision of ILO Convention No. 107 of 1988" [1988] AboriginalLawB 51; (1988) 1(34) Aboriginal Law Bulletin 12

Geneva: Revision of ILO Convention No. 107 of 1988

by Garth Nettheim

In the (northern) summer work proceeded in Geneva towards the formulation of the rights of indigenous peoples. The, work is being done in two separate forums - the International Labour Office and the United Nations.

The ILO operation involves the complex process of revising an existing instrument, ILO Convention No 107. This is still the only instrument to address some of the central issues facing indigenous peoples. But it was adopted in 1957, and the key language and concepts of "protection" and "integration" do not match the claims of indigenous peoples in the 1980s. Only 27 States have ratified the Convention (none in recent times) and Australia is not one of them.

In the face of universal acknowledgment that Convention No 107 is inadequate, the ILO convened a Meeting of Experts in 1986. Their recommendation was that the Convention should be revised. Actual revision focuses on a process of communication with the tripartite ILO delegates (Governments, employers and workers) in each nation, and with selected non-Govemmental organizations (NGOs), and a double-discussion process, ie, full discussion at two consecutive ILO Conferences. The first of these Conferences to consider draft revisions took place in Geneva in June 1988. The second and final Conference will take place in June 1989.

Two critical aspects of the draft revision were not resolved in June 1988. One of these concerns the appropriate term - "peoples" or "populations". The Employers' representatives, and the Government of Canada in particular, were nervous about use of the word "peoples" because other international covenants declare that all "peoples" have the right to self-determination. An attempt was made to avoid this issue with a statement that use of the term "peoples" is not intended to address the question of national self-determination. A Working Party failed to settle the issue and it awaits determination in 1989.

On land rights, again a Working Party failed to resolve disagreements, and the ILO office draft remains as the basis for next year's Conference. The most important issue concerns the rights of indigenous peoples in relation to resources development, especially mineral exploration and mining.

These issues are broader than those that usually concern ILO. Its usual concerns (labour matters) are adequately serviced by the structural involvement of employers and workers as well as governments. How can indigenous peoples have input? One means is by "educating" the delegations from their countries. In addition, indigenous people can try to secure places as members of the tripartite delegations from their countries.

In 1988 most of the indigenous participants were concentrated in the workers' group. There is also a limited capacity for NGOs to be involved. In the 1986 Meeting of Experts, only two NGOs had standing - the World Council of Indigenous Peoples (WCIP) and Survival International. At the 1988 Conference there was widened involvement, subject to a requirement that the NGOs be "international"; the "new" NGOs included Inuit Circumpolar Conference, Indian Council of South America, Four Directions Council, Indigenous World Association. Other indigenous peoples were represented as observers.

Three Australian Aboriginal people attended the Conference -Pat Fowell, Geoff Clark and Terry O'Shane. They actually withdrew from the Conference and issued a statement of explanation. (see [1988] AboriginalLB 52; 2(34)pg13 )

Critical decisions remain to be made at the 1989 Conference. The terms of the revised Convention are important for their own sake. They are also important because of the effect that the terms of a revised convention may have on the parallel development of a draft Universal Declaration of Indigenous Rights through the UN.

Indigenous groups at the UN rejected the ILO draft. For example; Article 5(a) simply provides that in applying the provisions of the Convention "due account shall be taken of cultural and religious values". Indigenous groups criticised this as being far too weak; they insist, instead, that in applying the Convention, their rights should be recognised.

Article 5(c) makes provision for policies being adopted with the participation and co-operation of indigenous peoples. Indigenous groups require that the policies affecting them be adopted with their consent as freely expressed through their own institutions.

Australian Aboriginal groups have consistently insisted that the revised Convention be based on the notion of consent; it is not enough for them merely to participate, as much as possible in the processes affecting them. The Convention must recognise that it is necessary to obtain their consent in relation to matters affecting them. The Convention must recognise that it is necessary to obtain their consent in relation to matters affecting them, their institutions and their relationships wit territory; otherwise the revised Convention will be cosmetic and counter-productive.

The Aboriginal Law Centre will discuss with the National Coalition of Aboriginal Organizations the possibility of holding a seminar later in the year, designed to enhance Aboriginal input into the ILO process so as to achieve a satisfactory revised convention.

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