Asia Indigenous Peoples Pact

B. The International and National Human Rights Framework with Respect to Decision Making

2. Among the international instruments that states the right of indigenous peoples to participate in decision making are the UNDRIP which was adopted in broad consensus by 143 countries, and the ILO Conventions 169 and 107. The latter was ratified by a number of governments in Asia while the ILO C169 was ratified by the government of Nepal only among the many countries in the region. Even in the absence of ratification in other countries in Asia though, the ILO C169 is still being used by ILO country offices as a guide in the legislation and formulation of policies for indigenous peoples in the countries they are based in.

3. In addition, the CERD General Recommendations 23 in para 4(d) also emphasized the right to effective participation of indigenous peoples in public life and their right to informed consent on matters directly relating to their rights and interests.

4. The World Bank also have their policies on indigenous peoples that state the need for borrowers to engage in FPIC among affected indigenous peoples that should result to broad community support. The Asia Development Bank, on the other hand, requires the acquisition of informed consent from affected communities in the projects that they are funding.

5. In the national level, the Constitution and some laws and policies of some States grant indigenous peoples special rights and privileges, recognize their traditional governance mechanisms and women’s rights in decision making. These are exemplified by the Forest Rights Act of 2006 of India and the Article 153 of the Constitution of Sabah.

6. The right to decision making and traditional governance mechanisms is also stipulated in the Land Law of Cambodia. In the Philippines, though they did not ratify the ILO C169, they have the Indigenous Peoples Rights Act (IPRA) which is the national law for indigenous peoples that explicitly states the right to free, prior and informed consent (FPIC) of indigenous cultural communities in one of its provisions. Implementation of the aforementioned policies and laws is still a big challenge though.

C. Indigenous Peoples’ Internal Decision Making Process

7. In many traditional decision making institutions, it is mostly the men who take on the leadership role among indigenous communities. Women are mostly recognized for their roles in the community as holders of institutional memories and seed keepers. Though in some countries, as in Nepal and Malaysia, women take the lead as priestesses and village heads.
8. One of the key characteristics of traditional decision making institutions is its collegiality or shared power and authority. Participatory practice begins with consultation with the members of the community on crucial matters. In this, decision is done collectively and it involves getting the mutual consent of the whole community.
9. The decision making process is based on their customary laws which are closely related to their way of life and their relationship with their land, territories and resources. The customary laws are oral traditions that have been passed on and enhanced to adapt to the changes of time from one generation to another. The scope of their decision making includes management of communal land, penalty on misconducts and resolution of marital problems of members of their community.
10. The community leaders made up of a council of elders perform the following roles: legislation, arbitration, mediation and conflict resolution. Even today, many indigenous peoples rely on the traditional decision making system of the community in settling disputes through amicable settlement before resorting to the judicial system of the State.
11. Selection of leaders is either through succession or consensus from the community members and guided by the criteria on the person’s wisdom and capacity to lead on community matters.
12. Among the existing traditional decision making institutions in the region at present are the Ator or Dap-ay of the Philippines and the Parha (cluster of villages) system in India. Traditional decision making institutions are likewise still very strong among communities in the northern part of Cambodia.

D. Changes and Challenges in the decision making process of indigenous communities

13.  Historical developments and changes that occurred in the mainstream governance system had greatly affected the traditional decision making institutions of indigenous communities. These include the entry of colonialists (as in the case of the British in Pakistan and India, the Americans in the Philippines), establishment of State governance systems and institutions for indigenous peoples’ concerns, and the introduction of religion, education and the media.

i. Establishment of State governance systems

14.  At present, the decision making systems of most indigenous communities in the region are adopting a dualistic approach where they have hybrid political structures. These current political structures are a mixture of traditional and government decision making systems. The leaders of these hybrid political structures are either appointed by the government or elected by the community. They compose the Council which is a decision making institution recognized by the State and thus looked upon as the link between the community and the State. This Council is mainly responsible for infrastructure development and does not deal much with the cultural matters of the community.
15. The huge risk about the concept of the Council is that some appointed leaders are mainly those who are supportive of the government or the companies and may not make the right decisions for their own community. Since they are paid by the government, they are often compelled to make decisions in favor of the State, rather than the people they were sworn to serve. In some cases companies attempt to bribe to win the support of these leaders for projects detrimental to the community.  In the case of Malaysia, the community leaders also receive allocations from companies for development projects that adversely impact communities.
16. In this dualistic approach, conflicts between the traditional and government-recognized leaders are very common and have greatly contributed to the weakening of the traditional decision making systems of indigenous peoples and have divided some communities. Further, this approach results to some traditional decision making institutions being subsumed to the governance system of the State.
17. Up to how much the traditional system will adapt to the modern development model still remains to be a contentious issue. The traditional system is changing and indigenous peoples do not have a choice but to engage with the State. In doing so, they still have to maintain and assert their values and principles in collective decision making which is a continuing challenge.

ii. Colonialism

18. The entry of the colonialists such as the British and their successors in South Asia and the United States in Southeast Asia had greatly impacted the governance system of indigenous communities. The introduction of a colonial governance system was coupled with the introduction of the English language which is now more commonly used by the governments in legislating laws and policies.

19. Indigenous communities find it difficult to engage with and participate in State processes nowadays, because they are limited by the language barrier as most of them do not speak and understand English.

20. Further, their policy of adding perks and privileges to the tribal chiefs and turning them into “state tools” resulted to conflict within the community.

iii. Misrepresentation of indigenous communities

21. The formation of peoples’ organizations (POs) by nongovernment organizations (NGOs) and by indigenous peoples themselves has generally assisted in building capacities of communities. However, this development has been co-opted by government agencies and companies to fast track project implementation and to minimize local opposition to projects. They set up peoples’ organizations among the assimilated people to misrepresent affected communities during dialogues and consultations resulting to conflict within the community.
22. Government agencies that cater to indigenous concerns have instead been working for the interest of companies as exemplified by their setting up of separate indigenous organizations to counter the opposing organizations within affected communities.
23. This is the experience of the Orang Asli in Peninsular Malaysia with the Orang Asli Affairs Department (JHEOA) which is mainly dominated by Malay staff members and with the National Commission for Indigenous Peoples (NCIP) in the Philippines. The latter is being criticized as they have been performing below the expectation of the affected indigenous communities who had hoped to be represented.

iv. Population transfer of non-indigenous settlers into indigenous communities

24. The resettlement of non-indigenous peoples into indigenous communities has greatly affected the traditional governance system as the settlers also form a community of their own within indigenous territories, create their own decision making system and select their own headmen. The indigenous peoples are forced to move out of their lands and either move to nearby indigenous communities or in the outskirts of their original village causing the destruction of the community’s traditions and culture. This is particularly the case in Bangladesh where Bengali settlers, backed by the military, attack indigenous villages and forcefully evict the original settlers from their territories.

v. Change of interest of younger indigenous organizations

25. Today’s indigenous youth are faced with the challenge on whether to stick with traditional decision making systems of their community or adapt to modern system. External influences such as religion, education, the media and the internet are greatly affecting the mindset of indigenous youth.
26. They are showing less interest in the preservation and continuity of their culture because of the lure of living a materialistic life and the negative depictions by the church, schools and the media of the indigenous ways of life. Most of them also opt to stay in the city after obtaining a degree and work with companies. This poses a big threat to the continuity of the traditions of indigenous peoples.

E. Present Interface of Decision Making

i. Participation in Electoral Politics

27. Many national laws and policies stipulate the mandatory representation of indigenous peoples in government posts but the implementation of this is again a problem. Engaging in electoral politics while at the same time keeping their values is another challenge for many indigenous leaders.
28. Indigenous leaders once elected to government positions are somehow prevailed upon by the ruling administration to lead the way the government wants them to lead and their indigenous values get mainstreamed along the way. Involvement in electoral politics also involves financial resources which most indigenous leaders rarely have, thus limiting their involvement in this.
29. In Nepal, even with the 218 indigenous representatives in the Constituent Assembly (CA), the indigenous peoples can barely assert their agenda because the indigenous CA representatives have to adhere to the manifestos of their political parties.
30. The party list system in the Philippines is ideally one avenue where indigenous peoples, as one of the marginalized sectors are able to participate and be represented in Congress. However, the State has been into organizing its own partylist of indigenous peoples who do not actually represent the genuine interest of the majority of the indigenous peoples in the country.

ii. Participation in the State’s Judicial System

31. The use of customary law and traditional mediation/justice system in settling disputes is still intact in most indigenous communities. Most indigenous communities still resort to the traditional justice system because aside from it being inexpensive, the judgment is swift, final and executory. The victims resort to the judicial system of the state if the case is not resolved using the traditional justice system, which rarely happens.
32. At present, the increasing number of indigenous advocates/lawyers is helping to influence the State justice system to adopt the traditional justice system. Key indigenous leaders in the Cordillera, Philippines are now also part of the mediation board of the court and are responsible in mediating and settling cases involving indigenous peoples or communities.

iii. Recognition of traditional decision making institutions by law

33. In some countries, the traditional governance systems in the village level are recognized by States and are now part of the basic governance structure of the country. This is reinforced by national and local laws and policies for Indigenous peoples such as the IPRA of the Philippines. This is the same with the recognition of the District Councils in the Chittagong Hill Tracts and the Village Development and Security Committee (JKKK) in Malaysia.

F. Recommendations

i. For the indigenous peoples

1. To strengthen and revitalize their traditional decision making institutions to include greater women participation.

2. To strengthen the transmission of indigenous knowledge to the younger indigenous generations.

3. To retain the values and principles of the traditional decision making system and to assert the concerns and issues of indigenous peoples when engaging with the governance systems of the State.

4. To strengthen the documentation customary laws.

ii. For the States and UN agencies

1. To ensure the implementation of FPIC in processes, projects or matters that affect indigenous communities.

2. To legislate laws for indigenous peoples consistent with customary laws and which must not be below the international standard, the UNDRIP.

3. To review existing laws and policies on indigenous peoples and its consistency with the UNDRIP.

4. To support initiatives in the strengthening and recognition of traditional decision making institutions and conflict management systems of indigenous peoples to be at par with government decision making and juridical systems.

5. For the UNDP, ADB, WB and other UN and international financial institutions to include indigenous representatives when planning for national programs for indigenous peoples.