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de Varennes, Fernand --- "Indigenous Peoples and Language" [1995] MurdochUeJlLaw 15; (1995) 2(1) Murdoch University Electronic Journal of Law


Author: Fernand de Varennes LLB, LLM (LSE), Dr Jur
Senior Lecturer, Murdoch University School of Law
Issue: Volume 2, Number 1 (April 1995)

[This article is an extract from a much larger work soon to appear in 1995 with Martinus Nijhoff Publishers, in the Netherlands, titled "Language, Minorities and Human Rights". The author wishes to thank Lise Lorrain, of Moncton, Canada, Elizabeth Handsley of Murdoch University, Perth, Australia, Professor Rosalyn Higgins of the London School of Economics, London, England, and Dr Bruno de Witte of the Rijskuniversiteit-Limburg, Maastricht, Netherlands, for their kind counsel and assistance.]

Language is a gift from the Creator. Embodied in aboriginal language is our unique relationship to the Creator, our attitudes, beliefs, values, and the fundamental notion of what is truth.[1]


As with other individuals, members of indigenous peoples[2] may claim that they are treated in a disadvantageous manner if public authorities and the resources of the state are not responsive to their demands for equal treatment and non-discrimination in respect to language. Whether or not the state's behaviour should be deemed discriminatory will depend upon factors such as demographic considerations, whether the indigenous language exists in written form, the financial resources of the government, the type and level of services demanded in the indigenous language, etc.

Equality and non-discrimination are not the only norms which can assist indigenous peoples in language matters. Obviously, if an indigenous people is numerically less than 50 percent of a state's total population, it objectively is a numerical minority and is thus entitled to the rights guaranteed to minorities under Article 27 of the International Covenant on Civil and Political Rights,[3] including the right to establish and operate its own schools, using its language as medium of instruction, free from government intervention, or assistance. This has been confirmed in cases which have gone before the United Nations Human Rights Committee, such as Lovelace v. Canada,[4] Ominayak v. Canada,[5] and Kitok v. Sweden.[6] It has also been confirmed by the Inter-American Commission on Human Rights in the Miskito case.[7] The Commission considered the Miskitos of Nicaragua as a minority community, despite its best efforts to avoid using the term "minority".[8] Finally, if the freedom of expression of any indigenous person were restricted, this would also constitute a violation of widely accepted human rights standards.

Moreover, it appears increasingly evident that indigenous peoples are entitled to preferential treatment in linguistic affairs, relative to that afforded to other individuals. This is due not to their position as a minority, which they may not necessarily constitute in some states, but to the acknowledgement in international law, as well as in some national jurisdictions, that they occupy a unique political and legal niche, with corresponding "privileges" not necessarily available to others.


2.1 The Languages of Indigenous Peoples in International Law

The recognition that indigenous peoples ought to be treated differently is not a new phenomenon at the international level. At the close of the nineteenth century there were already international conferences dealing with Africa and its native tribes (in Berlin in 1884-85 and in Brussels 1889-90). The Covenant of the League of Nations[9] contained a provision which in essence recognisedthat states had a fiduciary-type responsibility to assist "peoples not yet able to stand by themselves under the strenuous conditions of the modern world": therein "well-being and development" was seen as a "sacred trust of civilisation". States were also obliged to "undertake to secure just treatment of the native inhabitants of territories under their control".[10]

However, prior to and immediately following the Second World War, most international instruments remained silent on the issue of any special status or rights pertaining to indigenous peoples. The only real exceptions were the instruments of the International Labour Organisation (ILO), which began its work on the treatment of indigenous peoples in the 1920s. Beginning in 1926 with a committee of experts on native labour, the ILO then constituted a series of treaties involving some issues relevant to indigenous peoples, including Convention No. 29 (1930) on Forced Labour; Convention No. 50 (1936) on Recruitment of Indigenous Workers; Convention No. 64 (1939) on Contracts of Employment (Indigenous Workers), and Convention No. 65 (1939) on Penal Sanctions (Indigenous Works).[11]

It was not until some years after the Second World War that international interest in the rights of indigenous peoples increased dramatically, culminating in a study in 1953 which would ultimately pave the way for the first comprehensive international treaty to recognise the need for some special consideration in respect to indigenous languages.

The languages used by members of indigenous peoples appeared as a legal concern for the first time in 1957 in the ILO Convention (No. 107) Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries.[12] The prevailing tone of the treaty is clearly assimilationist, as it deals mostly with methods by which to permit the use of indigenous languages as a temporary measure prior to the adoption by indigenous peoples of "modern" languages and the cultures of dominant Western-based populations. For example, Article 23 of the Convention provides that a state's educational programmes should be adapted to the stage that the indigenous populations have reached in their social, economic and cultural integration into the national community.

As one author has pointed out:

"The degree of logical coherence between a commitment to preserve a language, and one to secure its gradual elimination from use is not great. The commitment to preserve is, to be sure, only to preserve as far as possible so that the balance is tipped in favour of elimination."[13]

Even if it is recognised in the Convention that indigenous children should be taught to read and write in their mother tongue or in the main vernacular language of the community, it is only a temporary measure until the transition fro the mother tongue to the national or official languages of the country takes place in a "progressive" way. Some thirty years later, the Convention appears to be out of date and far removed from the prevailing views of indigenous peoples and perhaps most governments.

At the United Nations, two more recent initiatives demonstrate a growing awareness of and interest in the special needs and position of indigenous peoples. In 1971, the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities appointed Mexican Ambassador Jose R. Martinez Cobo to undertake a study on the problem of discrimination against indigenous populations. As shall be seen below, the influential report of the Special Rapporteur contains an indepth analysis of many issues beyond that of discrimination. Moreover, a Working Group of the UN Sub-Commission, on indigenous populations, was formed in May 1982 to review developments relating to indigenous peoples and to submit conclusions and recommendations as to appropriate measures to promote respect for their human rights and fundamental freedoms. The Working Group's efforts led to a draft Declaration on the Rights of Indigenous Peoples which was adopted by the General Assembly in 1992 and subsequently modified.[14]

Following the United Nations initiatives, and in reaction to increasing criticism directed towards the 1957 ILO Convention, the International Labour Organisation convened in 1986 a meeting of experts, which eventually led to the adoption in 1989 of the ILO Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries (the "1989 ILO Convention").[15]

The trend towards guaranteeing state support for greater use of indigenous languages becomes apparent in that instrument. Gone is the urgency to integrate completely indigenous peoples at the expense of their own language and culture. The word "integration" is eliminated from the preamble and replaced with an expressed need to adopt "new international standards...with a view to removing integrationist orientation of the earlier standards". The preamble goes on to recognise the aspirations of indigenous peoples to exercise control over their own institutions, ways of life and economic development, which includes the maintenance and development of their identities, languages and religions.

The 1989 ILO Convention then goes on to identify how states must respect the language rights of indigenous peoples. Generally, Article 2 provides that governments have the responsibility to develop (with the participation of the peoples concerned) action to protect their rights, and stresses the need for respect for their social and cultural identity, their customs and traditions and their institutions, including obviously their linguistic component.

Perhaps the most revealing provision is Article 28, which provides that:

1. Children belonging to the peoples concerned shall, wherever practicable, be taught to read and write in their own indigenous language or in the language most commonly used by the group to which they belong. When this is not practicable, the competent authorities shall undertake consultations with these peoples with a view to the adoption of measures to achieve this objective.

2. Adequate measures shall be taken to ensure that these peoples have the opportunity to attain fluency in the national language or in one of the official languages of the country.

3. Measures shall be taken to preserve and promote the development and practice of the indigenous languages of the peoples concerned.

>From complete integration to practical accommodation in language matters, the trend at the international level is quite clear. Although indigenous peoples are still required to learn the official language of the state in which they live, they are no longer to be forced into abandoning their own language and culture. On the contrary, states would now appear to have the obligation to provide resources so that indigenous children can learn their ancestral language whenever it is practical. In fact, if the most recent international document on indigenous peoples (the UN Declaration on the Rights of Indigenous Peoples) is any indication, the obligations of states towards such peoples may be even greater than those towards any other group of individuals, even extending to a government responsibility to support and provide resources for the revitalisation of indigenous languages.    2.2 The Languages of Indigenous Peoples and State Practices

Throughout history, reactions and attitudes of various colonisers and governments towards the presence of indigenous peoples varied with time as did the relative strength and political power of such peoples. In some cases, the use of indigenous languages was approved of and even encouraged in order to ensure the conversion of non-Christian communities. In other cases, it was easier for missionaries to learn widespread indigenous languages in order to attain the objective sought. Indigenous languages in Latin America thus moved from an initial position of favour, in order to facilitate conversion efforts and the administration of territories, to an increasingly repressive situation which came about as the position of indigenous peoples weakened:

"After the 1812 War with the United States, British colonisers no longer required aboriginal peoples as allies or for that matter, as explorers or traders. Their value rapidly diminished, with the result that aboriginal tribes became stigmatised as obstacles to the progressive settlement of Canadian society. Moreover, by refusing to relinquish their identity and assimilate into "higher levels" of "civilisation", aboriginal peoples were dismissed as an inferior and unequal species whose rights could be trampled on with impunity... A policy of assimilation evolved as part of this project to subdue and subordinate aboriginal peoples. From the early nineteenth century on, elimination of the "Indian problem" was one of the colony's later the Dominion's foremost concerns. Authorities rejected extermination as a solution, but focused instead on a planned process of cultural change known as assimilation. Through assimilation, the dominant sector sought to undermine the cultural distinctiveness of aboriginal tribal society; to subject the indigenes to the rules, values and sanctions of Euro-Canadian society; and to absorb the de-cultured minority into the mainstream through a process of "anglo-conformity". The means to achieve this outward compliance with Euro-Canadian society lay in the hands of missionaries, teachers, and law-makers."[16]

In the US, teachers speaking only English were employed and instructed to assimilate indigenous children into the majority-controlled society. These children were punished they were beaten or they had their mouths washed out with soap if they lapsed into their native language: "at the boarding schools many of them were forced to attend by a government which at times withheld food from parents who wanted to keep their children at home."[17]

Similar methods were widely used in countries all over the world in an effort to mould individuals belonging to non-dominant groups, specifically minorities and indigenous peoples. This occured particularly after the seventeenth century as states intervened more and more directly into what had previously been community oriented activities (including education) in order to create the trappings of a nation-state:

"In 1812 the government junta advised schoolteachers that Spanish was the language of the classroom and to banish Guaran from school usage. "In school the use of Guaran in class hours was prohibited. To enforce this rule, teachers distributed to monitors bronze rings which were given to anyone found conversing in Guaran... [On] Saturday, return of the rings was requested and each one caught with a ring was punished with four or five lashes".[18]

The Sami people in Scandinavia were submitted to many of the same techniques. For example, from the second part of the nineteenth century, Norwegian authorities carried out a policy of assimilation in education as part ofthe Norwegian nation-building process in which the idea of "one nation - one language" played a prominent role. This was followed by other measures involving language preferences, which were to have a highly destructive impact on Sami society:        "In 1902, a law was passed to the effect that state-owned land in Finnmark could be sold or hired only to Norwegian citizens who were able to speak, read and write the Norwegian language and who used this language in everyday life. This regulation was primarily directed against Finnish immigrants, but its impact on the Sami population was at least as severe."[19]

Before European settlement of Australia, there were approximately 250 Aboriginal and Torres Strait Islander languages in the continent. Approximately one third of these continue to be spoken by some people, however, many arespoken only by a handful of older individuals. Their disappearance has nothing society, but much to do with repressive, even genocidal, actions by public authorities or members of the dominant majority:

"Every turn in policy of government and the practice of the non- [Aboriginal and Torres Strait Islander] community was postulated on the inferiority of the Aboriginal people; the original expropriation of their land was based on the idea that the land was not occupied and the people uncivilised; the protection policy was based on the view that Aboriginal people could not achieve a place in the non- [Aboriginal and Torres Strait Islander] society and that they must be protected against themselves while the race died out; the assimilationist policy assumed that their culture and way of life is without value and that we confer a favour on them by assimilating them into our ways; even to the point of taking their children and removing them from family."[20]

Such a scenario, recurrently experienced by indigenous peoples worldwide, must be understood in terms of economic and political power in addition to legal manifestations of such power: the invading population group would take control of the land from indigenous peoples in order to exploit local resources and to establish effective political power over the territory. With consolidation of power and control over recently acquired territories, the conquering authorities found it expedient at times to impose their way of life upon indigenous populations, whose traditions they often considered primitive, in order to support the legitimacy of their own claims of ownership and dominion.[21]

Thus, many of the policies affecting indigenous peoples were based upon the assumption that indigenous populations, cultures and languages would eventually disappear naturally or by absorption into other segments of the population and the emerging national culture of the new state:

"It was expected that the indigenous languages would the face of the dynamism, the equality and the attraction of the official languages - international languages which were assumed to have real or imaginary advantages of all kinds, and were considered particularly suited to science, technology, art and civilisation. For that reason, no stress was laid on state plans to teach the indigenous languages or use them as languages of instruction for some of the initial phases of education. That was assumed to be contrary to the best interests of those societies and involved danger for national unity, since it was feared that it would lead inevitably to linguistic insularity and excessive social and political fragmentation.[22]

By the beginning of the second half of this century, however, national attitudes had begun to undergo a marked shift contemporaneously to changing international attitudes and standards on the issue of the appropriate legal and institutional response to the presence of indigenous peoples and their languages. Mexico was the scene of serious discussions during the 1950s suggesting that it was inappropriate to teach in Spanish in an environment where the mother tongue was an indigenous language. By the middle 1960s, the principle of early literacy in the native language plus the teaching of Spanish as a second language became the official policy of the Mexican government. In the 1970s, a growing demand appeared for the whole educational programme in the larger indigenous communities to be truly bilingual and bicultural:

"This means that, for the first time in the educational history of Mexico, the Indian languages and cultures are being given due recognition in school programmes. It is hoped that all subjects during the whole of the primary school cycle will be taught in the mother tongue, in those areas where this is spoken by a local majority; that Spanish will be introduced from the beginning as a second language and that the Indian students will become fully bilingual; that in all relevant subjects the local culture will be prominently dealt with (for example, local and regional history, geography, customs, traditions, ethnobiology, etc.). At the same time, at the national level, the curriculum should be organised in such a fashion that schoolchildren all over the country will become aware of the pluricultural makeup of their nation, and respect for and knowledge of the minority cultures should become a part of the national curriculum. Of course, the full hispanicization of all minority ethnic groups is still the stated objective, but no longer to the exclusion of the minority cultures as such."[23]

Indigenous peoples seem to have been making impressive gains in many countries, especially in public education. In Norway, Sami was again allowed as a language of instruction in primary schools in 1959. In 1969, Norwegian legislation formalised the right of children of Sami-speaking parents in Sami districts to be instructed in the language of the indigenous community. Finally, by 1990, the Norwegian Primary School Act read as follows:

1. Children in Sami districts have the right to be taught Sami and to be instructed through the medium of Sami. From the seventh year on the pupils themselves decide on this matter.  Children taught in or through the medium of Sami are exempted from instruction in one of the two Norwegian language varieties in the eighth and ninth year.

2. On advice from the local school board the municipality board may decide that Sami-speaking children shall be instructed in Sami all nine years and that Norwegian-speaking children shall learn Sami as a subject.

3. Instruction in or through the medium of Sami may also be given to children with a Sami background outside the Sami districts.If there are at least three Sami-speaking pupils at a school, they may demand instruction in Sami.[24]

In the 1980s, all three Scandinavian countries had begun to elaborate legal guarantees in respect to the right to use the Sami language. Norway, with the largest population of Sami, adopted the first Sami language law in 1990, followed by Finland in 1991 with its Law on the Use of the Sami Language Before the Authorities. Sweden's attitude has been much more reserved than its neighbours on this issue, although it does have in place a few regulations on the use of Sami. All three states have directly elected Sami "Parliaments" which came into being in Finland in 1973, in Norway in 1987, and in Sweden in 1993. Although these are strictly consultative bodies, the fact that they are elected does give them considerable weight with the legislators when faced with issues of importance to the Sami.

In the last twenty-five years, Latin American countries have also begun to move in a similar direction as regards the right to use indigenous languages. In March 1975, Peru enacted Decree No. 21 recognising Quechua as an official language of the Republic because, as set out in the Preamble, large sections of the indigenous population "have no direct access to knowledge of the laws". The decree also provides that where the parties only speak Quechua, legal proceedings shall be conducted in that language, and that the Ministry of Education shall provide "all necessary support for institutions engaged in...the teaching and promotion of the language in question". The teaching of Quechua is declared to be compulsory at "all levels of education in the Republic". In Bolivia, the Supreme Decree No. 23036 of 28 January 1992 contains provision for the implementation of the Programa de Educacin Intercultural Bilingue in the Guaran, Aymara and Quecha communities.[25] In Mexico, the Executive Decree of 27 January 1992 amends Article 4 of the Constitution by including a provision which protects the development of indigenous languages, culture, uses, customs, resources and social organisations. In Paraguay, Law 28 of 10 September 1992 renders mandatory the teaching of both national languages (Spanish and Guaran) at the elementary, secondary and university levels.[26] Even France, in its overseas territory of New Caledonia, has acknowledged the need to respond to the special legal and political situation of indigenous peoples, as well as the need to adopt linguistic policies.[27] There are many more examples of this evolution in national legislation.[28]

A notable change of heart is also observable in the United States which, until perhaps some twenty years ago, had been intransigent towards indigenous peoples, their languages and their cultures:

"In 1978 the state legislature of Hawaii recognised Hawaiian as an official language; subsequently a language revitalisation program was established. Ten years later... a Hawaiian senator introduced a proposal in both houses of Congress which resulted in the adoption of the Native American Languages Act in October 1990. In October 1992, additional legislation was passed, setting up a grant program "to ensure the survival and continuing vitality of Native American languages"... The Native American Languages Act acknowledges that the "United States has the responsibility to act together with Native Americans to ensure the survival of these unique cultures and languages", and establishes a federal policy "to preserve, protect and promote the rights and freedom of Native Americans to use, practice and develop Native American languages" and to "encourage and support the use of Native American languages as a medium of instruction". The grant system supports community projects, teacher training, materials development, training for radio and television production, language documentation and equipment purchase."[29]

Although progress has also been made in Canada, most indigenous peoples do not actually have the right to demand the use of their language medium of instruction in that country. The governments in the Province of Quebec and the Northwest Territories (where a large percentage of the population is indigenous) have the most generous attitudes and legislation in place, but most governments in Canada generally do not allow the use of indigenous languages in state-supported schools as medium of instruction, nor even allow the instruction of indigenous languages except perhaps for one or two hours every week, despite important sums of money being allocated to indigenous peoples by governments for education.[30] In other areas, the government of Canada has been more generous, as for example the funding of indigenous language broadcasting.[31]

Finally in New Zealand, numerous court decisions have confirmed that the Maori language is protected under the Waitangi Treaty as a te reo Maori, a valued Maori treasure.[32] Thus, partly in recognition of New Zealand's treaty obligations, te reo Maori was made an official language in 1987 and legislation was adopted in order to fulfil the following obligations in respect to the language of the indigenous Maori:

1. Law and policies preventing the use of te reo Maori in the courts are inconsistent with the principles of the treaty.

2. The education and broadcasting systems overemphasise English and thus fail to give adequate protection to te reo Maori.

3. Te reo Maori should be recognised in the courts and in dealing with any department or local authority.[33]

Whilst there is undoubtedly a visible trend towards the recognition of the fundamental importance of language for indigenous peoples in many countries, not all states share the view that there is a need to accommodate the language preferences of indigenous peoples.

Apparently, governments in Malaysia, India, Burma, and Bangladesh have at times claimed that everyone is indigenous. Moreover, a number of Asian governments have cited the need for a national language to promote national unity, and some have launched assimilation programmes reminiscent of the techniques used by European colonialists in America and Australia: children are removed from their families and sent to government boarding schools where instruction is in the official or majority language.[34] There may be even more sinister explanations for such practices:

"But behind such legitimate concerns often lurks a poorly disguised contempt for cultures seen as backward. The Commission for a New Asia, which is a group of leading intellectuals from the region, recently expressed a commonly held official view: "In no Asian society should we be prepared to perpetuate the existence of groups which will be fascinating human anachronisms worthy only for the study of 21st century anthropologists"."[35]

In 1993, many indigenous inhabitants of Easter Island openly challenged the Chilean government, demanding control over their land and the use of their native language, Rapa Nui, as the main language in their schools. Even states with a longer established tradition of accommodation towards indigenous peoples have encountered problems in implementation. Public school teachers are often unwilling or unprepared to present indigenous languages in a serious context within the classroom. Indigenous language materials, if they are available, are often translations of Spanish originals with no reference to the indigenous cultures. In a number of states, the good will of public authorities is sometimes confronted with extreme scarcity of resources or cuts in public expenditures such as public education.

Even the armed uprising of indigenous peoples, including members of the Tzeltal, Tzotzil, Tojolabal and Chol, in Chiapas, Mexico, in January 1994 rested to some degree on the inability of the Mexican government to carry through with its constitutional and legal obligations in respect to the use of indigenous languages. Many public teachers in indigenous communities are unable to speak the local language, and school material and books are often only available in Spanish, in apparent violation of the constitution. During negotiations with the rebels, the government agreed to provide education in their native language and to revise school curriculums to include more indigenous history and culture.[36]

Despite these problems, there is no denying that national practices appear to lean towards granting indigenous peoples more generous concessions in language and culture than they would perhaps be entitled to if they were considered as simply another minority.


3.1 Evolving International Standards

"The Yaki language is a gift from Itom Achai, the creator of our people, and it should, as a result, be treated with respect.  Our former language is the foundation of our cultural and spiritual heritage, without which we could not exist in the manner envisaged by our creator.  Education is the transmission of culture and values; therefore, we decalre that Yaki education shall be the means of transmission of language and of spiritual and cultural heritage.  We declare further that every aspect of teaching should reflect the beauty of our Yaki language, our culture and our values.  It shall be the policy of the Pascua Yaki tribe that no member of the tribe should be constrained by any external authority to deny nor debase the Yaki language...The Yaki language is the official language of the Pascua Yaki nation and may be used in governmental administration (be it an exercise of legislative, executive or judicial power) but out of respect for those who speak Spanish or English, Spanish and English may be used in the official affairs of government."[37]

Indigenous peoples are recognised as having in international law a position which differs from other groups.[38] In addition to the rights to which they may be entitled as minorities, and in addition to the right to non-discrimination or freedom of expression, indigenous peoples appear to be entitled to other measures because of their unique political and legal status.

It is certainly a truism to say that the main driving force behind early international instruments was the desire to assimilate indigenous peoples into the mainstream of society as quickly as possible, and at any cost. The trend today is markedly different: indigenous peoples, whilst still being called to participate in the larger society by learning a state's official or majority language, should be allowed to, and even assisted in, preserving their languages, customs, and culture. These new and evolving norms imply that a state is obligated to provide financial and institutional assistance in order to develop and promote indigenous languages. These norms would also seem to indicate that even in the case of a language used by a relatively small number of indigenous people, a state may be obligated to assist in its maintenance financially or otherwise, if the indigenous people seek to enforce their right to the promotion and safeguard of their language.[39]

The fundamental difference between the international documents and norms relating to non-discrimination in general and those dealing with indigenous peoples in particular appears to be the following:  whereas a state has a positive obligation to provide for certain services such as state education in a minority or non-official language only when there is a sufficiently high number of speakers of such language, indigenous peoples would not seem to be subject to the same requirement in respect to relative numbers.

Special Rapporteur Jose R. Martinez Cobo noted that in addition to the level of legal recognition for the use of an indigenous language appropriate to the number of speakers of the language, consistent with the application of non-discrimination on the ground of language, "in no circumstances should it be less than that of an auxiliary language in public education and other specific functions that may be established."[40] In other words, regardless of its demographic importance, an indigenous language should always be entitled to some type of legal status.

In the area of public education, the Special Rapporteur pointed out that as a strict minimum, indigenous children should always be taught the language of their people, regardless of their numbers:

"The state must make an effort to provide, at the primary level sufficient facilities for the teaching of the mother tongue of indigenous children; in all circumstances it must teach them to read and write in their mother tongue and consolidate this knowledge before teaching them any other dialect or language as a second or acquired language."[41]

The 1989 ILO Convention and the UN Declaration on the Rights of Indigenous Peoples incorporate, to a significant extent, the suggestions of the Special Rapporteur in this respect.

Even in its Preamble, the 1989 ILO Convention refers to the appropriateness of removing the assimilationist character of earlier standards. Articles 2 and 6 provide for the duty of a state to cooperate with indigenous peoples in the full realisation of their social, economic and cultural rights, with respect to their social and cultural identity, their customs and traditions and their institutions. In addition to the need for cooperation, the 1989 ILO Convention calls for the duty to "consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly" as well as to "establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose." Indigenous peoples have the right to retain their own customs and institutions, as long as they are compatible with fundamental human rights.

The Convention as a whole reflects an emphasis on indigenous peoples as political or cultural units which are entitled to the respect of the state, as well as the maintenance of, and even appropriate resources for, their institutions. Article 6 which refers to "representative institutions" appears to acknowledge that the political structures of indigenous peoples are to be recognised and consulted as part of a state's own legal and political order.[42]

On the linguistic front, Article 27 of the 1989 ILO Convention begins with the principle that educational policies must reflect the special needs and incorporate the histories, knowledge, value systems and the further social, economic and cultural aspirations of indigenous peoples. Moreover, Article 27(3) provides that:

"In addition, governments shall recognise the right of these peoples to establish their own educational institutions and facilities, provided that such institutions meet minimum standards established by the competent authority in consultation with these peoples. Appropriate resources shall be provided for this purpose."

Whilst Article 27 of the International Covenant on Civil and Political Rights and Article 27(3) of the 1989 ILO Convention are essentially identical in recognising the right to establish private educational institutions, they differ in one important aspect: in the latter, indigenous peoples are entitled to appropriate resources from the state to make this possible, something that the Covenant does not provide for.

The 1989 ILO Convention also has a provision dealing with public schools and indigenous peoples. Article 28(1) provides that indigenous children "shall, wherever practicable, be taught to read and write in their own indigenous language or in the language most commonly used by the group to which they belong. When this is not practicable, the competent authorities shall undertake consultations with these peoples with a view to the adoption of measures to achieve this objective."

Whilst some of the provisions of the 1989 ILO Convention are likely inspired by the prohibition of discriminatory practices, it is undeniable that others go beyond this norm: indigenous peoples deserve "special measures" because of their unique political position within a state, or perhaps because of their traditional political autonomy. Though there may be other explanations why indigenous peoples should be treated differently from other groups, it remains fairly clear that regardless of their relative demographic importance, states should, whenever practical, protect and promote the development and use of indigenous languages and assist indigenous children in learning the language of their ancestors. The language rights of indigenous peoples are thus linked to their unique status as members of a political and social entity increasingly recognised in international law.

Notwithstanding the above, the 1989 ILO Convention does raise some difficult issues. For example, whilst a state should provide public schooling where indigenous languages are taught wherever this is practical, it is not obvious what is meant by the use of the term "practical". A reasonable interpretation would be that even if the number of individuals seeking public education in an indigenous language is relatively small, this ought not to be a complete barrier: a state should at minimum respect these individuals' right to learn the language of their people wherever it is practical to do so. Of course, there are factors which may make it impossible, such as if a language only exists in verbal form. One could also conclude that financial considerations may be involved, particularly if the number of individuals is so small that it would clearly be outlandish to spend large sums of money to produce teaching material in a language used, for example, by a few dozen individuals in a state where resources for education are already hard-pressed. In a situation where it is not practical for the state itself to ensure that every indigenous child be taught to read and write in the language of his or her people, it should then explore with indigenous peoples other ways of complying with the requirements of the 1989 ILO Convention.[43]

It should also be emphasised that Article 27(3) does not appear to guarantee entire instruction in indigenous languages, but only that children of indigenous peoples are to be taught to read and write the language of their people.

Indeed, the tone of the 1989 ILO Convention is somewhat timid compared to the provisions of the UN Declaration on the Rights of Indigenous Peoples. Recognising the right of indigenous peoples to self- determination in Article 3 (by virtue of which they may freely determine their political status and pursue their economic, social and cultural development), the Declaration then enumerates an impressive series of rights which extend beyond what has generally been considered mandatory for minority groups or individuals, including:

1.  The right to autonomy and self-government (Article 3). 2.  The right to maintain and strengthen their distinct political,     economic,  social and cultural characteristics, as well as their legal     systems, while retaining their rights to participate fully, if they so     choose, in the political, economic, social and cultural life of the state     (Article 4). 3.  The right to be protected from "cultural" genocide, including the     prevention of and redress for any act which has the aim or effect of     depriving them of their integrity as distinct societies, or of their     cultural or ethnic characteristics or identities, or any form of forced     assimilation or integration by imposition of other cultures or ways of     life (Article 7). 4.  The right to revitalize, use, develop and transmit to future     generations their histories, languages, oral traditions, philosophies,     writing systems and literatures, and to designate and retain their     own names for communities, places and persons. Furthermore,     states have the obligation to take effective measures to ensure this     right is protected (Article 14). 5.  The right of indigenous children to all levels and forms of     education of the state. This is combined with the right of all     indigenous peoples to establish and control their educational     systems and institutions providing education in their own languages,     in a manner appropriate to their cultural methods of teaching and     learning. Indigenous children living outside their communities still     have the right to be provided access to education in their own     culture and language. Furthermore, states must take effective     measures to provide appropriate resources for these purposes     (Article 15). 6.  The right to autonomy or self-government, as a form of self-     determination, in matters relating to their internal and local affairs,     including culture, religion, education, information, media, health,     housing, employment, social welfare, economic activities, land and     resources management, environment and entry by non-members,     as well as taxation powers for financing these autonomous functions     (Article 31). 7.  The collective right to determine their own citizenship in     accordance with their customs and traditions, while maintaining the     right to citizenship of the states in which they live, as well as the     right to determine the structures and to select the membership of     their institutions in accordance with their own procedures (Article     32). 8.  The right to promote, develop and maintain their institutional     structures and their distinctive juridical customs, traditions,     procedures and practices, as long as they conform to internationally     recognised human rights standards (Article 33).

In fact, the approach towards the rights of indigenous peoples in the UN Declaration on the Rights of Indigenous Peoples, as compared to the approach towards the rights of minorities generally in instruments such as the International Covenant on Civil and Political Rights, is nothing short of striking. The UN Declaration unequivocally suggests that indigenous peoples should occupy a privileged political and legal position: they should have the right to autonomous governing and legal structures and institutions, including some power of taxation and control over their resources. Linked to this right to autonomy would be an inherent right to use their indigenous languages within their structures and institutions.

Moreover, it would seem that the state could be obligated to assist indigenous peoples in "correcting" past injustices and practices which amount to "cultural" genocide. The weakness of some indigenous languages, particularly in North America and Australia, is due to assimilationist state policies, often enforced brutally or at least against the will of indigenous peoples, with ensuing consequences in terms of economic and educational advancement. According to Article 7, indigenous peoples would have the right to obtain redress from the principal offenders, namely public authorities. Although the provision appears to be mainly concerned with the prevention of and redress for current state practices that deprive indigenous peoples of their "integrity as distinct societies, or of their cultural or ethnic characteristics", it is certainly arguable that some measure of redress must be implemented since most of the original causes of the present disintegration of indigenous cultures and languages are attribuable to state sponsored or condoned practices that were common until fairly recently.

In the field of education, the UN Declaration proposes to go even further than the 1989 ILO Convention. Whilst in the latter, the extent of the right to instruction of indigenous languages appears to be limited to the acquisition of an ability to read and write one's own indigenous language, the right as proposed in Article 15 could extend to all levels and forms of public education in indigenous languages, in addition to the right to establish and control private indigenous educational systems and institutions supported by state resources.  In other words, the UN Declaration now suggests that indigenous peoples, regardless of the number of speakers of their languages, should be entitled to be educated through the medium of their language in public schools. The unqualified wording sets Article 15 apart from provisions relying on the principle of non- discrimination where a state is entitled to limit the number of languages which may be used as medium of instruction in public schools where it is reasonable and warranted because of the numbers of children involved. The UN Declaration is thus far more generous than those instruments setting down rights to which speakers of a minority or non-official language would normally be entitled.

Although the principles of the Declaration, if they are ever adopted in a final version, represent a noble expression of the willingness to recognise the needs and aspirations of indigenous peoples in a generous and flexible way, it is difficult to envision how Article 15 can survive in its present, unqualified, form. There are, for example, some indigenous peoples which now only number a few hundred speakers, and sometimes even fewer.[44] It would appear quite literally impossible for a state to guarantee access to education at all levels in an indigenous language used by only a handful of people. Conversely, this may also be the intent of the drafters of Article 15: the provision guarantees the right to public instruction in an indigenous language except where it is impossible to do so. Of course, indigenous peoples themselves can always decide on varying degrees of use of their language as medium of instruction.   Surprisingly, the UN Declaration on the Rights of Indigenous Peoples does not mention that indigenous peoples are entitled or obligated to learn the official or majority language of the state they inhabit, although in practice it is doubtful any indigenous community would wish to isolate itself completely from the rest of society. Moreover, since the wishes of indigenous peoples are paramount in these matters, a state could not oblige upon indigenous peoples an indigenous-language-only education policy which would segregate them from society at large.

3.2 Contemporary National Practices

"In societies with oral language traditions the languages provide an irreplaceable repository of experience, history, mythology, spiritual belief, law and socio-cultural organisation and values. This derives from the very nature of language itself, the major mediator between experiences and thought and culture. The Aboriginal interpretation of Australia - its landscape, environment and the experiences of its inhabitants - is among the most ancient of any in the world. Being unique to this continent these languages are an important an irreplaceable source of self-knowledge for Australia and of inestimable value to Aborigines and their prospects of cultural survival.[45]

Governments in recent years have also begun to recognise the unique legal position of indigenous peoples situated within their borders, along with related rights regarding the use, development and even revival of their languages. Many states, such as Nicaragua, have begun to abandon their integrationist policies and are discussing the creation of special programmes to protect indigenous language rights.[46] Others such as the United States, Finland and New Zealand have adopted specific legislation guaranteeing such rights, whilst others like Canada appear to be edging towards the same direction.

For the Maoris in New Zealand, their language is guaranteed as a measure of protection in the Treaty of Waitangi, signed between this indigenous people and the British Crown in the nineteenth century. The treaty provides that the Maori people's treasures (taonga) are to be protected by the Crown. New Zealand courts have decided that the existence of close ties between Maori culture and customs, and their native language, te reo Maori, signifies that language is one of the treasures of that indigenous people, which the state is required to protect,[47] and that this protection includes, at least, the right to acquisition of that language by the Maori people in state-funded schools.[48]

Something similar is occurring in Scandinavian countries. The Finnish Parliament, for example, has adopted a Sami Language Act which provides, amongst other things, for the legal right of the Sami to certain government and educational services in their ancestral language, even though there are fewer than 50,000 Sami in the entire state. The Act recognises in its preamble that the Sami have these rights because of their unique position in Finnish society.[49]

It is in the Province of Quebec and in the Northwest Territories[50] that indigenous peoples in Canada find the greatest level of protection and use of their languages by public authorities and in public education, sometimes by way of agreements with local or regional indigenous governmental authorities.[51] But in most Canadian provinces, indigenous peoples have little or no right to use their language with public authorities, and many indigenous children do not receive in public schools any real opportunity to acquire an ability to read and write their language.

The United States has followed suite to international trends by recently adopting the Native American Languages Act.[52] This appears to be a recognition of the special political status of indigenous peoples and corresponding linguistic obligations on the part of the federal government. US federal obligations, because of this special relationship, include the duty to work together with indigenous peoples to ensure the survival of their languages.[53]

The US policy to respect its obligations in this regard includes the following:

1. To preserve, protect and promote the rights and freedom of    Native Americans to use, practice and develop Native American    Languages. 2. To recognise the right of Indian tribes and other Native American    governing bodies to use the Native American languages as a    medium of instruction in all schools funded by the Secretary of the    Interior. 3. To fully recognise the inherent right of Indian tribes and other    Native American governing bodies, states, territories, and    possessions of the United States to take action on, and give official    status to, their Native American languages for the purpose of    conducting their own business.[54]

State-funded schools for indigenous peoples in the US can thus be obliged to use indigenous languages as medium of instruction when it is deemed desirable by indigenous peoples themselves.

The indigenous people in the Danish territory of Greenland have also made important gains, in line with international trends, in the use of their language:

"There was a growing realisation that genuine emancipation of the Greenlandic people and modernisation of their society was impossible without emancipating and modernising the indigenous language.  When Home Rule came in 1979, it was agreed that Greenlandic should be the main language... Since then, marked progress has taken place. Greenlandic has become the medium of instruction in the schools, and, while Danish used to be taught from the first year onwards, it is now delayed until the third year. It is also generally acknowledged that even children of Danish parents living in Greenland should learn Greenlandic."[55]

In the French territory of New Caledonia, indigenous peoples have been granted some autonomy powers, including the right to teach their language and culture in public schools.[56] In Nicaragua, the Atlantic Coast Autonomy Law recognises the right of the Atlantic Coast communities to preserve their cultural identity, and their languages, as well as the right to use and enjoy the waters, forests and communal lands for their own benefit.  For example, Article 12(5) provides that members of these indigenous communities are entitled to beeducated in their own languages, through programmes which take into account their historical heritage, their traditions and the characteristics of their environment, all within the framework of the national education system.

The degree of consistency in state practice and in the demands emanating from indigenous peoples themselves point to a growing consensus that indigenous peoples, more than any other group, are entitled to some type of political autonomy and to education in their native language. The following demands of the Mayas of Guatemala are surprisingly close to what appear to be the evolving consensus at the international level:

- Oficializar los idiomas Mayas a nivel de cada comunidad   linguistica. - Hacer obligatorio el aprendizaje y uso los idiomas Mayas a los   funcionarios de servicios publicos ubicados en regiones con   poblacion Maya. Los funcionarios publicos que no pertenecen a la   comunidad linguistica en que prestan sus servicios, deben poseer el   conocimiento y manejo corriente del idioma propio de dicha   comunidad. - Impartir justicia en el idioma Maya de acuerdo a la comunidad   linguistica donde se procese al encausado. - Utilizar la lengua Maya de cada comunidad linguistica como   lengua docente en los programas de educacion... - Implementar programas de emergencia para contribuir al rescate   de las comunidades linguisticas en vas de extincion (Xinkas,   Itzaes, Tekos, etc.)... - Reestructurar el Ministerio de Educacion para que presupuestaria,   org nica y estructuralmente desarrolle los subsistemas de   educacion del Pueblo Maya, Ladino, Xinka y al Garifuna. El Pueblo   Maya debe disponer y decidir sobre sus propias escuelas en los   diversos niveles de la ense anza escolar, personal bilingue y propio   material did ctico. - Sistematizar la ense anza del las ciencias, la tecnologa, las artes   y la filosofia Maya, en sus distintos niveles. El alumno Maya debe   conocer y aprender desde su propia cosmovision ya que perfil y las   directrices del Estado, reflejan otros valores y otra vision del mundo. - El Estado debe reconocer el derecho del Pueblo Maya de disponer   de sus propias escuelas para la formacion de Maestros Bilingues   para todos los niveles y especialidades de la labor escolar.[57]        There is of course reluctance in some states in this respect. Despite its generally flexible attitude concerning the Sami people and the use of their language in public schools and by public authorities, and despite the creation in 1992 of an elected Sami parliament (the Sametingslagen) of 31 members, the Swedish government has rejected, for example, calls for special language legislation for the Sami. Two main reasons are cited: all Sami speak Swedish, and such a move would lead to similar demands from larger linguistic groups.

Despite exceptions, both international and national law appear to be heading towards increased recognition of the special position which indigenous peoples occupy within a society's legal and political order. They are not simply another minority group, but would seem to deserve greater latitude, and also greater assistance, in the maintenance of their traditional customs, practices and languages than their demographic strength would normally warrant when applying the right to non-discrimination or the right to use their languages with other members of their communities. There is a visible trend at both levels signalling the unique relationship between a state and its indigenous peoples which would appear to require concrete government measures allowing the continued use of these languages, and even correcting the results of previous assimilationist practices by public authorities. At the very least, it would appear that a state has the obligation to provide the resources for the use of indigenous languages as medium of instruction in education, which reflects the true desiDespite exceptions, both international and national law appear to be heading towards increased recognition of the special position which indigenous peoples occupy within a society's legal and political order. They are not simply another minority group, but would seem to deserve greater latitude, and also greater assistance, in the maintenance of their traditional customs, practices and languages than their demographic strength would normally warrant when applying the right to non-discrimination or the right to use their languages with other members of their communities. There is a visible trend at both levels signalling the unique relationship between a state and its indigenous peoples which would appear to require concrete government measures allowing the true desires of the peoples involved when it is practical or possible to do so.


1. The Aboriginal Language Policy Study Phase II: Implementation Mechanism (1988), National Indian Brotherhood, Ottawa, at p. 91. 

2.  It should be remarked that in international law, most of the rights ascribed to "indigenous peoples" are also ascribed to "tribal peoples", but that both groups lack a clear and concise definition. In fact, many scholars are at pains to truly distinguish "indigenous" peoples from long- established minorities such as the Basques, Berbers or Karens. In Alfredsson, Gudmundur (1990), Report on Equality and Non-Discrimination: Minority Rights, Council of Europe, Strasbourg, at p. 15, it is claimed that the "crucial factor in the definition of indigenous peoples is their original inhabitation of the land on which, unlike the minorities, they have lived from time immemorial": if this were true, the Basques would constitute an indigenous people. More realistically, one scholar has admitted that it is difficult to find a valid explanation to exclude some groups whilst admitting others. See Hannum, Hurst (1988), "New Developments in Indigenous Rights", in Virginia Journal of International Law, Vol. 28, 649-678, at p. 664:    "Some governments, such as India and Bangladesh, wanted to limit the definition to those peoples in the Western Hemisphere and Australasia. Ultimately, the Working Group opted for a "flexible" approach to avoid formal adoption of a definition. Nonetheless, the governments of China, the USSR, India, and Bangladesh continue to equate indigenousness and colonisation, thereby denying that there are any "indigenous" peoples within their territories. Despite efforts to suggest that only those peoples invaded by European colonial powers or their descendants are "indigenous", it seems clear that Asian hill tribes such as the Karen and Hmong, and Arab and African nomadic tribes, who pursue traditional life-styles, should also be included in a commonsense understanding of "indigenous." Less certain would be the inclusion of Central Asian peoples such as the Armenians, Baluchis, Tatars, and Kurds, or survivors of overland invasions by peoples of similar ethnicity, such as occurred in Africa and much of Asia."

3. See also generally Study of the Problem of Discrimination Against
Indigenous Populations, Jose R. Martinez Cobo, Special Rapporteur (1987), United Nations Publications, New York.  United Nations Treaty Series, Vol. 999.

4.  Communication 24/1977, UN Document A/36/40.

5.  Communication 167/1984, UN Document A/42/40.

6.  Communication 197/1985, UN Document A/43/40.

7. Report of the Commission on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin and Resolution on the Friendly Settlement Procedure Regarding the Human Rights Situation of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser.L/V/II.62, Document 26, 1984.

8.  Indigenous peoples often resent being identified as a minority because most of their demands are not based on their status as a numerical minority, but as a political entity whose sovereignty they maintain has never been completely surrendered.  Therefore, they feel that to present their demands couched in terms of a minority issue risks weakening the political nature of their status and claims.

9.  (1934) 7 Hudson, World Court Reports 10.

10. See Articles 22 and 23 quoted in an excellent paper by Lerner, Nathan (1992), "The 1989 ILO Convention on Indigenous Populations: New Standards?", in Yoram Dinstein and Mala Tabory (eds.), The Protection of Minorities and Human Rights, Martinus Nijhoff, Dordrecht, Netherlands, at p. 214.

11.  Ibid.

12.  Adopted 26 June 1957.

13. Thornberry, Patrick (1991), International Law and the Rights of Minorities, Clarendon Press, Oxford, United Kingdom, at p. 362.

14.  The most recent draft is UN Doc. E/CN.4/Sub.2/1993/29.

15.  Adopted 27 June 1989.

16.  Quoted in de Varennes, Fernand (1994), "L'article 35 de la Loi constitutionnelle de 1982 et la protection des droits linguistiques des peuples autochtones", in National Journal of Constitutional Law, Vol. 4, N 3, 265-303, at p. 274.

17.  Baron, Dennis E. (1990), The English-Only Question: An Official Language for Americans?, Yale University Press, New Haven, USA, at p.165; see also Language of Inequality (1985), N. Wolfson and J. Manes (eds.), Mouton Publishers, Berlin, at p. 174; and Piatt, Bill (1990), Only English?  Law and Language Policy in the United States, University of New Mexico Press, Albuquerque, USA, at pp. 4-5:    "Policies of European colonists and succeeding American administrations, some of which can only be considered genocidal, often resulted in the extermination of the native peoples and languages. We are all too familiar with the long saga of oppression and brutalization resulting in the herding of native Americans onto isolated reservations. This herding, and the subsequent attempts to force native children into an English-speaking educational system and environment, sought to achieve the so-called civilisation of these peoples including the replacement of their native tongues with English. In the case of the conquistadores and their accompanying religious figures, the civilising language was Spanish. 

18. Rubin, J.(1968), National Bilingualism in Paraguay, Mouton, den Haag, Netherlands, at p. 480.

19. Vik R, Lars S. (1993), The Nordic Languages: Their Status and Interrelations, Novus Press, Oslo, at p. 90.

20.  Quoted in Language and Culture: A Matter of Survival (1992), Australian Government Publishing Service, Canberra, at p. 17.

21. Torres, Raidza (1991), "The Rights of Indigenous Populations: The Emerging International Norm", in Yale Journal of International Law, Vol.

16, 127-175, at p. 133.

22. Study of the Problem of Discrimination Against Indigenous Populations, supra, note 2, at p. 11. See also Derecho Indigena y Derechos Humanos en America Latina (1988), Rodolfo Stavenhagen (ed.), Instituto Interamericano de Derechos Humanos and El Colegio de Mexico, Mexico, at pp. 346-347:

"Hasta que punto una poltica educativa respetuosa de las culturas indigenas y que tienda a potencializar su desarollo din mico, es compatible con la idea motriz de unidad y desarollo nacional que es la ideologia dominante en los paises latinoamericanos, constituye uno de los debates mes agudos de las sociedades nacionales lationamericanas actualmente.  Hasta que punto los derechos sociales y culturales de los pueblos consagrados en los pactos y otros instrumentos internacionales pueden aplicarse a los grupos indigenas del continente en cuanto se refiere al derecho a recibir educacion en su propia lengua y a la proteccin y respeto de su cultura por el resto de la sociedad nacional ? La respuesta a esta pregunta, alrededor de la cual an no existe consenso, tiene implicaciones para las legislaciones de nuestros paises. En un mondo cada vez mes integrado y dominado en escala universal por las tendencias homogeneizadoras de los medios de comunicacin de masas, los derechos culturales de los pueblos y de las colectividades aparecen cada vez con mayor insistencia como uno de los derechos humanos b sicos o una de las libertades fundamentales de esta epoca."

23. Stavenhagen, Rodolfo (1990), "Linguistic Minorities and Language Policy in Latin America: The Case of Mexico", in Florian Coulmas (ed.), Linguistic Minorities and Literacy: Language Policy Issues in Developing Countries, Mouton Publishers, Berlin, pp. 56-62, at pp. 60-61.

24. Supra, note 19, at p. 91.

25.  Gaceta oficial, 13 March 1992.

26.  Gaceta oficial de la Repblica del Paraguay, 11 September 1992.

27. Turcotte, D. (1982), Composition ethnique et politique linguistique en Nouvelle- Calendonie: Adoption, implantation et diffusion du francais comme langue officielle et vehiculaire unique, International Centre for
Research on Bilingualism, Quebec, at pp. 22-23.

28. See the status of the indigenous language in Groenland in Linguistic Rights of Minorities (1994), Frank Horn (ed.), Northern Institute for Environmental and Minority Law, University of Lapland, Rovaniemi, Finland, at pp. 79-80; Article 210 of the Constitution of Brazil which guarantees to indigenous communities the use of their languages in regular basic education; and Article 16, Ley 23.302 sobre la Politica Indigena y Apoyo a las Comunidades Aborigenes, 8 November 1985, Boletin Oficial de la Republica Argentina, 12 November 1985:

"La enseanza que se imparta en las  reas de asentamiento de las comunidades indgenas asegurar  los contenidos curriculares previstos en los planes comunes y, adem s, en el nivel primario se adoptar  una modalidad de trabajo consistente en dividir el nivel en dos ciclos: en los tres primeros aos, la enseanza se impartir  con la lengua indgena materna correspondiente y se desarrollar  como materia especial el idioma nacional; en los restantes aos, la enseanza ser  bilinge. Se promover la formacin y capacitacin de docentes primarios bilinges, con especial nfasis en los aspectos antropolgicos, linguiticos y did cticos, como asimismo la preparacion de textos y otros materiales, a travs de la creacion de centros y/o cursos especiales de nivel superior, destinados a estas actividaded.  Los establecimientos primarios ubicados fuera de los lugares de asentamiento de las comunidades indgenas, donde asistan nios aborgenes (que slo o predominantemente se expresen en lengua indgena) podr n adoptar la modalidad de trabajo prevista en el presente artculo."

29. Fettes, Mark (1994), "The International Context of Aboriginal Linguistic Rights", in Canadian Centre for Linguistic Rights Bulletin, Vol. 1, N 3, 6-11, at p. 10.

30. Les langues autochtones du Quebec (1992), Jacques Maurais (ed.), Les Publications du Quebec, Quebec, at pp. 158-159:    "In many primary schools administered by bands or by the federal government, or which depend on the provincial administration, one sees the progressive introduction, in the area of language, of pilot projects for bilingual education.  These are comprised for the most part of pre-school education in the vernacular language and, for the first five years of primary education, the learning of English or of French combined with various periods where indigenous languages are taught, or where an indigenous language is the language of instruction.  Soon, according to government statistics from 1980 - 1981, indigenous schools will be included in the study programmes of 65% of federal schools, 19% of provincial schools and 34% of schools administered by bands.  However, the development of a true indigenous programme, and its introduction in both primary and secondary schools, remains for the majority of indigenous bands a very distant vision."

31.  Ibid., at p. 168.

32. See for example Attorney General v. New Zealand Maori Council [1991], 2 N.Z.L.R. 129 (New Zealand), Attorney General v. New Zealand Maori Council (No. 2) [1991], 2 N.Z.L.R. 147 (New Zealand), New Zealand Maori Council v. Attorney General [1992], 2 N.Z.L.R. 576 (New Zealand).

33. Although the New Zealand legislation refers to the equal legal status of English and te reo Maori, this is absolutely not the true effect of the provisions currently in place: for example, the right to use te reo Maori in court proceedings only allows for the assistance of an interpreter. Whereas an English-speaking defendant will always have the right or privilege to be judged in his own language, the same is never available to a Maori in his own language. To paraphrase George Orwell, some are more equal than others. For the situation in Australia, see Language and Culture: A Matter of Survival, supra, note 20, at pp.


34. See The Ethnic Dimension in International Relations (1993), Bernard Schechterman and Martin Slann (eds.), Praeger, Westport, Connecticut, at pp. 148-149, regarding similar incidents involving indigenous peoples in Brazil and Venezuela in the 1970s.

35. Globe and Mail, Toronto, 14 May 1994, at p. A10.

36. In another, non-violent, confrontation, some 800 Achuar, Quicha, and Shuar marched from their villages to the capital city of Quito, Ecuador, in April 1992, galvanising several thousand more indigenous people to join them along the way. In response, Ecuador's president promised to accept a long-standing demand regarding the use of indigenous languages as medium of instruction.

37. The Yaqui Nation of Arizona, supra, note 30, at p. 39.

38. Supra, note 21, at p. 158:    "Because United Nations sub-committees establish working groups nwhen they recognise that an issue is unique to a particular group or political situation, the establishment of the Working Group suggests that after 1982 the United Nations considered indigenous concerns to be substantially different from those faced by other minorities... A number of governments have also recognised the unique nature of indigenous problems. Many states, such as Nicaragua, are currently abandoning their integrationist policies and are discussing the creation of special aboriginal programmes to protect indigenous rights. Other countries, like Canada, while still not recognising all indigenous rights, are at least consulting with indigenous peoples and creating special indigenous programs. Such developments have led, albeit indirectly, to the crystallisation of an indigenous norm. 

39. See in particular Article 14 and 15 of the proposed Declaration on the Rights of Indigenous Peoples, supra, note 14.

40. Study of the Problem of Discrimination Against Indigenous Populations, supra, note 2, at p. 18.

41. Ibid., at p. 20.

42. Many states acknowledge as part of their internal law that indigenous peoples have either retained some degree of inherent sovereignty that has not been extinguished by conquest or control by invading or newly arrived peoples, or have a continuing legal status that clearly sets them apart. In the United States, indigenous peoples are deemed to be "sovereign, domestic dependent nations" which have entered into a trust relationship with the government and which are considered as distinct political entities. Similarly in Canada, it appears increasingly that indigenous peoples have retained some degree of autonomy as political entities. The Samis of Scandinavia have made even more impressive gains during the last

10 years through the creation of Sami Parliaments, despite their current limited role as consultative bodies. The Mayas of Guatemala still maintain that they have a surviving political right of autonomy. A number of Latin American states, in particular Nicaragua and Colombia, have granted to indigenous communities extensive powers, at least partly in recognition of their unique political status. See amongst others Hannum, supra, note 2, at pp. 675-676; Torres, supra, note 21, at pp. 133-134; Melkevik, Bjarne
(1992), "L'organisation de l'autonomie politique autochtone : L'exemple des Sams (Lapons) de Norvege", in Manitoba Law Journal, Vol. 21, No. 3,

406-425, at p. 406; Consejo de Organizaciones Mayas de Guatemala (1991), Derechos Especificos del Pueblo Maya, Editorial Cholsamaj, Guatemala, at p. 13; Cumming, Peter and Ginn, Diana (1986), "First Nations Self-Government in Canada", in Nordic Journal of International Law, Vol.

55, 86-116, at pp. 91-92; and the eloquent description of Thomas Berger, quoted in Macklem, Patrick (1993), "Distributing Sovereignty: Indian Nations and Equality of Peoples", in Stanford Law Review, Vol. 45,

1311-1367, at p. 1328:    "After the Europeans came and occupied the continent, driving the Natives into enclaves, even these enclaves came under attack, because they were limited to Native people. But they are political communities, founded on tradition and culture, not on race. These political communities are not vestigial: rather they are repositories of Native hopes and ideals of self-government."

43. See also on this topic the recommendations in Study of the Problem of Discrimination Against Indigenous Populations, supra, note 2, at pp.


44.  See the situation for many indigenous languages in Canada in de Varennes, supra, note 16, at pp. 278-279.

45. Lo Bianco, Joseph (1987), National Policy on Languages, Australian Government Publications Service, Canberra, at p. 10.

46. Even in states claiming to recognise the right of indigenous peoples to be taught in their own language, there can be a number of shortcomings, such as the absence of schools in or near indigenous communities, the lack of qualified teachers with the necessary knowledge of the relevant indigenous language and culture, and the absence of educational material in indigenous languages. Moreover, in teaching the official language, insufficient care may be taken to prevent a pupil from being cut off from his mother tongue, and in many cases this continues to be a deliberate, if illegal or inappropriate, objective. See on this point Study of the Problem of Discrimination Against Indigenous Populations, supra, note 2, at p. 10, and Des peuples enfin reconnus (1994), Marie Lger (ed.), Editions Acosociate, Montreal, at p. 178:    "Despite a constitutional provision allowing it, there is no bilingual education for indigenous children, the programme which is delivered to them is the same as that which other schoolchildren in the Republic receive and it is given in Spanish.  However, as a significant proportion of teachers is of Kuna origin, that allows the de facto adaptation of certain courses."

47. See New Zealand Maori Council v. Attorney General, [1992] 2 N.Z.L.R.

576 (New Zealand), and the preamble of the Maori Language Act, 1987:

"Whereas in the Treaty of Waitangi the Crown confirmed and guaranteed to the Maori people, among other things, all their taonga: And whereas the Maori language is one such taonga..."

48. See generally Hastings, William K. (1988), The Right to an Education in Maori: The Case From International Law, Victoria University Press, Wellington, New Zealand, at pp. 22-26. It should not be assumed that the recognised obligations under the Waitangi Treaty constitute absolute protection of the rights of indigenous peoples to obtain services and benefits from public authorities in their own language. Courts in New Zealand have been unwilling to impose a precise line of conduct upon the government in observance of the provisions of the Treaty unless a practice or decision is shown to have been arrived at in an unreasonable fashion. In other words, courts are reluctant to explore too closely the linguistic obligations under the Treaty and prefer to leave the whole matter to the government itself. Thus, the Maori almost have to prove baf faith on the part of the government before being able to obtain any redress in court. See on this point the reasoning in Attorney General v. New Zealand Maori Council [1991], 2 N.Z.L.R. 129 (New Zealand), at p.

130:    "Broadcasting was a development of Western civilisation not foreseen by the makers of the Treaty. Naturally the Treaty does not specifically deal with it. Nevertheless the Treaty principles of partnership and protection of taonga, past neglect of them at times, and New Zealand's international obligations can be argued to combine to make it incumbent on the Crown to take reasonable steps to enable Maori language and culture to be promoted by broadcasting. But there is no need to express an opinion on that argument, because even on that approach I do not think that it could possibly be said that the precise path to be followed could only be defined by the Courts. The Waitangi Tribunal and Parliament have accepted that the Treaty guarantees protection for the Maori language as a taonga, but the Treaty certainly does not lay down what should be done for that purpose in allocating radio frequencies. It is a field in which, on any view, a range of options is open. If the Government, giving due weight to the Treaty principles, elects between the available options reasonably and in good faith, it seems to me that the Treaty is complied with."

49. See Act on the Use of the Sami Language before the Authorities, 8 March 1991/516. The rights of the Samis to be taught their language in public schools and to use it before public authorities in Norway and Sweden are described in The Situation of Regional or Minority Languages in Europe (1994), Council of Europe, Strasbourg, at pp. 92-96 and

126-128, and Melkevik, Bjarne (1991), "Autochtones et droit : le nouveau droit norvgien des Sams (Lapons)", in Les Cahiers de Droit, Vol. 32,

33-57, at pp. 43-54.

50. Supra, note 29, at p. 9.

51. Supra, note 30, at pp. 161-162. See also Article 88 of the Charte de la langue francaise, 1993 Revised Statutes of Quebec, Chapter C-11:    "Notwithstanding sections 72 to 86, in the schools under the jurisdiction of the Cree School Board or the Kativik School board, according to the Cree, Inuit and Naskapi Public Education Act, the languages of instruction shall be Cree and Inuktitut, respectively, and the other languages of instruction in use in the Cree and Inuit communities in Quebec on the date of the signing of the Agreement indicated in section 1 of the Act approving the Agreement concerning James Bay and Northern Quebec (chapter C-67), namely, 11 November 1975.  The Cree School Board and the Kativik School Board shall pursue as an objective the use of French as a language of French as a language of instruction so that pupils graduating from their schools will in future be capable of continuing their studies in a French school, college or university elsewhere in Quebec, if they so desire. After consultation with the school committees, in the case of the Crees, and with the parents' committees, in the case of the Inuit, the commissioners shall determine the rate of instruction of French and English as languages of instruction."

52. 30 October 1990, 104 STAT. 1153.

53. Ibid., at Article 102:   (1) the status of the cultures and languages of Native     Americans is unique and the United States has the     responsibility to act together with Native Americans to     ensure the survival of these unique cultures and     languages; (2) special status is accorded Native Americans in the     United States, a status that recognises distinct cultural     and political rights, including the right to continue     separate identities; (3) the traditional languages of Native Americans are an     integral part of their cultures and identities and form the     basic medium for the transmission, and thus survival, of     Native American cultures, literatures, histories, religions,     political institutions, and values;... (4) acts of suppression and extermination directed     against Native American languages and cultures are in     conflict with the United States policy of self-     determination for Native Americans;...

54.  Ibid., Article 104.

55. Supra, note 19, at p. 110.

56.  Article 7, Loi no 88-82 du 22 janvier 1988 portant statut du territoire de la Nouvelle-Caledonie, Journal officiel de la Republique de France, 26 January 1988, at p. 1231

57.  Consejo de Organizaciones Mayas de Guatemala, supra, note 42, at pp. 14-19.

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