ILO Convention 169 (text in english)

 

This resource can also be found here: http://www.ilo.org/ilolex/english/convdisp1.htm

 

The General Conference of the International Labour Organisation,

 

Having been convened at Geneva by the Governing Body of the International
Labour Office, and having met in its 76th Session on 7 June 1989, and

 

Noting the international standards contained in the Indigenous and Tribal
Populations Convention and Recommendation, 1957, and

 

Recalling the terms of the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the
International Covenant on Civil and Political Rights, and the many
international instruments on the prevention of discrimination, and

 

Considering that the developments which have taken place in international law
since 1957, as well as developments in the situation of indigenous and tribal
peoples in all regions of the world, have made it appropriate to adopt new
international standards on the subject with a view to removing the
assimilationist orientation of the earlier standards, and

 

Recognising the aspirations of these peoples to exercise control over their
own institutions, ways of life and economic development and to maintain and
develop their identities, languages and religions, within the framework of the
States in which they live, and

 

Noting that in many parts of the world these peoples are unable to enjoy their
fundamental human rights to the same degree as the rest of the population of
the States within which they live, and that their laws, values, customs and
perspectives have often been eroded, and

 

Calling attention to the distinctive contributions of indigenous and tribal
peoples to the cultural diversity and social and ecological harmony of
humankind and to international co-operation and understanding, and

 

Noting that the following provisions have been framed with the co-operation of
the United Nations, the Food and Agriculture Organisation of the United
Nations, the United Nations Educational, Scientific and Cultural Organisation
and the World Health Organisation, as well as of the Inter-American Indian
Institute, at appropriate levels and in their respective fields, and that it
is proposed to continue this co-operation in promoting and securing the
application of these provisions, and

 

Having decided upon the adoption of certain proposals with regard to the
partial revision of the Indigenous and Tribal Populations Convention, 1957
(No. 107), which is the fourth item on the agenda of the session, and

 

Having determined that these proposals shall take the form of an international
Convention revising the Indigenous and Tribal Populations Convention, 1957;

 

adopts this twenty-seventh day of June of the year one thousand nine hundred
and eighty-nine the following Convention, which may be cited as the Indigenous
and Tribal Peoples Convention, 1989;

 

 


PART I. GENERAL POLICY

 

Article 1

1. This Convention applies to:

(a) tribal peoples in independent countries whose social, cultural and
economic conditions distinguish them from other sections of the national
community, and whose status is regulated wholly or partially by their own
customs or traditions or by special laws or regulations;

(b) peoples in independent countries who are regarded as indigenous on account
of their descent from the populations which inhabited the country, or a
geographical region to which the country belongs, at the time of conquest or
colonisation or the establishment of present state boundaries and who,
irrespective of their legal status, retain some or all of their own social,
economic, cultural and political institutions.

 

2. Self-identification as indigenous or tribal shall be regarded as a
fundamental criterion for determining the groups to which the provisions of
this Convention apply.

 

3. The use of the term peoples in this Convention shall not be construed
as having any implications as regards the rights which may attach to the term
under international law.

 

Article 2

1. Governments shall have the responsibility for developing, with the
participation of the peoples concerned, co-ordinated and systematic action to
protect the rights of these peoples and to guarantee respect for their
integrity.

 

2. Such action shall include measures for:

(a) ensuring that members of these peoples benefit on an equal footing from
the rights and opportunities which national laws and regulations grant to
other members of the population;

(b) promoting the full realisation of the social, economic and cultural rights
of these peoples with respect for their social and cultural identity, their
customs and traditions and their institutions;

(c) assisting the members of the peoples concerned to eliminate socio-economic
gaps that may exist between indigenous and other members of the national
community, in a manner compatible with their aspirations and ways of life.

 

Article 3

1. Indigenous and tribal peoples shall enjoy the full measure of human rights
and fundamental freedoms without hindrance or discrimination. The provisions
of the Convention shall be applied without discrimination to male and female
members of these peoples.

 

2. No form of force or coercion shall be used in violation of the human rights
and fundamental freedoms of the peoples concerned, including the rights
contained in this Convention.

 

Article 4

1. Special measures shall be adopted as appropriate for safeguarding the
persons, institutions, property, labour, cultures and environment of the
peoples concerned.

 

2. Such special measures shall not be contrary to the freely-expressed wishes
of the peoples concerned.

 

3. Enjoyment of the general rights of citizenship, without discrimination,
shall not be prejudiced in any way by such special measures.

 

Article 5

In applying the provisions of this Convention:

(a) the social, cultural, religious and spiritual values and practices of
these peoples shall be recognised and protected, and due account shall be
taken of the nature of the problems which face them both as groups and as
individuals;

(b) the integrity of the values, practices and institutions of these peoples
shall be respected;

(c) policies aimed at mitigating the difficulties experienced by these peoples
in facing new conditions of life and work shall be adopted, with the
participation and co-operation of the peoples affected.

 

Article 6

1. In applying the provisions of this Convention, governments shall:

(a) 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;

(b) establish means by which these peoples can freely participate, to at least
the same extent as other sectors of the population, at all levels of
decision-making in elective institutions and administrative and other bodies
responsible for policies and programmes which concern them;

(c) establish means for the full development of these peoples' own
institutions and initiatives, and in appropriate cases provide the resources
necessary for this purpose.

 

2. The consultations carried out in application of this Convention shall be
undertaken, in good faith and in a form appropriate to the circumstances, with
the objective of achieving agreement or consent to the proposed measures.

 

Article 7

1. The peoples concerned shall have the right to decide their own priorities
for the process of development as it affects their lives, beliefs,
institutions and spiritual well-being and the lands they occupy or otherwise
use, and to exercise control, to the extent possible, over their own economic,
social and cultural development. In addition, they shall participate in the
formulation, implementation and evaluation of plans and programmes for
national and regional development which may affect them directly.

 

2. The improvement of the conditions of life and work and levels of health and
education of the peoples concerned, with their participation and co-operation,
shall be a matter of priority in plans for the overall economic development of
areas they inhabit. Special projects for development of the areas in question
shall also be so designed as to promote such improvement.

 

3. Governments shall ensure that, whenever appropriate, studies are carried
out, in co-operation with the peoples concerned, to assess the social,
spiritual, cultural and environmental impact on them of planned development
activities. The results of these studies shall be considered as fundamental
criteria for the implementation of these activities.

 

4. Governments shall take measures, in co-operation with the peoples
concerned, to protect and preserve the environment of the territories they
inhabit.

 

Article 8

1. In applying national laws and regulations to the peoples concerned, due
regard shall be had to their customs or customary laws.

 

2. These peoples shall have the right to retain their own customs and
institutions, where these are not incompatible with fundamental rights defined
by the national legal system and with internationally recognised human rights.
Procedures shall be established, whenever necessary, to resolve conflicts
which may arise in the application of this principle.

 

3. The application of paragraphs 1 and 2 of this Article shall not prevent
members of these peoples from exercising the rights granted to all citizens
and from assuming the corresponding duties.

 

Article 9

1. To the extent compatible with the national legal system and internationally
recognised human rights, the methods customarily practised by the peoples
concerned for dealing with offences committed by their members shall be
respected.

 

2. The customs of these peoples in regard to penal matters shall be taken into
consideration by the authorities and courts dealing with such cases.

 

Article 10

1. In imposing penalties laid down by general law on members of these peoples
account shall be taken of their economic, social and cultural characteristics.

2. Preference shall be given to methods of punishment other than confinement
in prison.

 

Article 11

The exaction from members of the peoples concerned of compulsory personal
services in any form, whether paid or unpaid, shall be prohibited and
punishable by law, except in cases prescribed by law for all citizens.

 

Article 12

The peoples concerned shall be safeguarded against the abuse of their rights
and shall be able to take legal proceedings, either individually or through
their representative bodies, for the effective protection of these rights.
Measures shall be taken to ensure that members of these peoples can understand
and be understood in legal proceedings, where necessary through the provision
of interpretation or by other effective means.

 

PART II. LAND

 

Article 13

1. In applying the provisions of this Part of the Convention governments shall
respect the special importance for the cultures and spiritual values of the
peoples concerned of their relationship with the lands or territories, or both
as applicable, which they occupy or otherwise use, and in particular the
collective aspects of this relationship.

 

2. The use of the term lands in Articles 15 and 16 shall include the
concept of territories, which covers the total environment of the areas which
the peoples concerned occupy or otherwise use.

 

Article 14

1. The rights of ownership and possession of the peoples concerned over the
lands which they traditionally occupy shall be recognised. In addition,
measures shall be taken in appropriate cases to safeguard the right of the
peoples concerned to use lands not exclusively occupied by them, but to which
they have traditionally had access for their subsistence and traditional
activities. Particular attention shall be paid to the situation of nomadic
peoples and shifting cultivators in this respect.

 

2. Governments shall take steps as necessary to identify the lands which the
peoples concerned traditionally occupy, and to guarantee effective protection
of their rights of ownership and possession.

 

3. Adequate procedures shall be established within the national legal system
to resolve land claims by the peoples concerned.

 

Article 15

1. The rights of the peoples concerned to the natural resources pertaining to
their lands shall be specially safeguarded. These rights include the right of
these peoples to participate in the use, management and conservation of these
resources.

 

2. In cases in which the State retains the ownership of mineral or sub-surface
resources or rights to other resources pertaining to lands, governments shall
establish or maintain procedures through which they shall consult these
peoples, with a view to ascertaining whether and to what degree their
interests would be prejudiced, before undertaking or permitting any programmes
for the exploration or exploitation of such resources pertaining to their
lands. The peoples concerned shall wherever possible participate in the
benefits of such activities, and shall receive fair compensation for any
damages which they may sustain as a result of such activities.

 

Article 16

1. Subject to the following paragraphs of this Article, the peoples concerned
shall not be removed from the lands which they occupy.

 

2. Where the relocation of these peoples is considered necessary as an
exceptional measure, such relocation shall take place only with their free and
informed consent. Where their consent cannot be obtained, such relocation
shall take place only following appropriate procedures established by national
laws and regulations, including public inquiries where appropriate, which
provide the opportunity for effective representation of the peoples concerned.

3. Whenever possible, these peoples shall have the right to return to their
traditional lands, as soon as the grounds for relocation cease to exist.

 

4. When such return is not possible, as determined by agreement or, in the
absence of such agreement, through appropriate procedures, these peoples shall
be provided in all possible cases with lands of quality and legal status at
least equal to that of the lands previously occupied by them, suitable to
provide for their present needs and future development. Where the peoples
concerned express a preference for compensation in money or in kind, they
shall be so compensated under appropriate guarantees.

 

5. Persons thus relocated shall be fully compensated for any resulting loss or
injury.

 

Article 17

1. Procedures established by the peoples concerned for the transmission of
land rights among members of these peoples shall be respected.

 

2. The peoples concerned shall be consulted whenever consideration is being
given to their capacity to alienate their lands or otherwise transmit their
rights outside their own community.

 

3. Persons not belonging to these peoples shall be prevented from taking
advantage of their customs or of lack of understanding of the laws on the part
of their members to secure the ownership, possession or use of land belonging
to them.

 

Article 18

Adequate penalties shall be established by law for unauthorised intrusion
upon, or use of, the lands of the peoples concerned, and governments shall
take measures to prevent such offences.

 

Article 19

National agrarian programmes shall secure to the peoples concerned treatment
equivalent to that accorded to other sectors of the population with regard to:

(a) the provision of more land for these peoples when they have not the area
necessary for providing the essentials of a normal existence, or for any
possible increase in their numbers;

 

(b) the provision of the means required to promote the development of the
lands which these peoples already possess.

 

PART III. RECRUITMENT AND CONDITIONS OF EMPLOYMENT

 

Article 20

1. Governments shall, within the framework of national laws and regulations,
and in co-operation with the peoples concerned, adopt special measures to
ensure the effective protection with regard to recruitment and conditions of
employment of workers belonging to these peoples, to the extent that they are
not effectively protected by laws applicable to workers in general.

 

2. Governments shall do everything possible to prevent any discrimination
between workers belonging to the peoples concerned and other workers, in
particular as regards:

(a) admission to employment, including skilled employment, as well as measures
for promotion and advancement;

(b) equal remuneration for work of equal value;

(c) medical and social assistance, occupational safety and health, all social
security benefits and any other occupationally related benefits, and housing;

(d) the right of association and freedom for all lawful trade union
activities, and the right to conclude collective agreements with employers or
employers' organisations.

 

3. The measures taken shall include measures to ensure:

(a) that workers belonging to the peoples concerned, including seasonal,
casual and migrant workers in agricultural and other employment, as well as
those employed by labour contractors, enjoy the protection afforded by
national law and practice to other such workers in the same sectors, and that
they are fully informed of their rights under labour legislation and of the
means of redress available to them;

(b) that workers belonging to these peoples are not subjected to working
conditions hazardous to their health, in particular through exposure to
pesticides or other toxic substances;

(c) that workers belonging to these peoples are not subjected to coercive
recruitment systems, including bonded labour and other forms of debt
servitude;

(d) that workers belonging to these peoples enjoy equal opportunities and
equal treatment in employment for men and women, and protection from sexual
harassment.

 

4. Particular attention shall be paid to the establishment of adequate labour
inspection services in areas where workers belonging to the peoples concerned
undertake wage employment, in order to ensure compliance with the provisions
of this Part of this Convention.

 

PART IV. VOCATIONAL TRAINING, HANDICRAFTS AND RURAL INDUSTRIES

 

Article 21

Members of the peoples concerned shall enjoy opportunities at least equal to
those of other citizens in respect of vocational training measures.

 

Article 22

1. Measures shall be taken to promote the voluntary participation of members
of the peoples concerned in vocational training programmes of general
application.

 

2. Whenever existing programmes of vocational training of general application
do not meet the special needs of the peoples concerned, governments shall,
with the participation of these peoples, ensure the provision of special
training programmes and facilities.

 

3. Any special training programmes shall be based on the economic environment,
social and cultural conditions and practical needs of the peoples concerned.
Any studies made in this connection shall be carried out in co-operation with
these peoples, who shall be consulted on the organisation and operation of
such programmes. Where feasible, these peoples shall progressively assume
responsibility for the organisation and operation of such special training
programmes, if they so decide.

 

Article 23

1. Handicrafts, rural and community-based industries, and subsistence economy
and traditional activities of the peoples concerned, such as hunting, fishing,
trapping and gathering, shall be recognised as important factors in the
maintenance of their cultures and in their economic self-reliance and
development. Governments shall, with the participation of these people and
whenever appropriate, ensure that these activities are strengthened and
promoted.

 

2. Upon the request of the peoples concerned, appropriate technical and
financial assistance shall be provided wherever possible, taking into account
the traditional technologies and cultural characteristics of these peoples, as
well as the importance of sustainable and equitable development.

 

PART V. SOCIAL SECURITY AND HEALTH

 

Article 24

Social security schemes shall be extended progressively to cover the peoples
concerned, and applied without discrimination against them.

 

Article 25

1. Governments shall ensure that adequate health services are made available
to the peoples concerned, or shall provide them with resources to allow them
to design and deliver such services under their own responsibility and
control, so that they may enjoy the highest attainable standard of physical
and mental health.

 

2. Health services shall, to the extent possible, be community-based. These
services shall be planned and administered in co-operation with the peoples
concerned and take into account their economic, geographic, social and
cultural conditions as well as their traditional preventive care, healing
practices and medicines.

 

3. The health care system shall give preference to the training and employment
of local community health workers, and focus on primary health care while
maintaining strong links with other levels of health care services.

 

4. The provision of such health services shall be co-ordinated with other
social, economic and cultural measures in the country.

 

PART VI. EDUCATION AND MEANS OF COMMUNICATION

 

Article 26

Measures shall be taken to ensure that members of the peoples concerned have
the opportunity to acquire education at all levels on at least an equal
footing with the rest of the national community.

 

Article 27

1. Education programmes and services for the peoples concerned shall be
developed and implemented in co-operation with them to address their special
needs, and shall incorporate their histories, their knowledge and
technologies, their value systems and their further social, economic and
cultural aspirations.

 

2. The competent authority shall ensure the training of members of these
peoples and their involvement in the formulation and implementation of
education programmes, with a view to the progressive transfer of
responsibility for the conduct of these programmes to these peoples as
appropriate.

 

3. 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.

 

Article 28

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.

 

Article 29

The imparting of general knowledge and skills that will help children
belonging to the peoples concerned to participate fully and on an equal
footing in their own community and in the national community shall be an aim
of education for these peoples.

 

Article 30

1. Governments shall adopt measures appropriate to the traditions and cultures
of the peoples concerned, to make known to them their rights and duties,
especially in regard to labour, economic opportunities, education and health
matters, social welfare and their rights deriving from this Convention.

 

2. If necessary, this shall be done by means of written translations and
through the use of mass communications in the languages of these peoples.

 

Article 31

Educational measures shall be taken among all sections of the national
community, and particularly among those that are in most direct contact with
the peoples concerned, with the object of eliminating prejudices that they may
harbour in respect of these peoples. To this end, efforts shall be made to
ensure that history textbooks and other educational materials provide a fair,
accurate and informative portrayal of the societies and cultures of these
peoples.

 

PART VII. CONTACTS AND CO-OPERATION ACROSS BORDERS

 

Article 32

Governments shall take appropriate measures, including by means of
international agreements, to facilitate contacts and co-operation between
indigenous and tribal peoples across borders, including activities in the
economic, social, cultural, spiritual and environmental fields.

 

PART VIII. ADMINISTRATION

 

Article 33

1. The governmental authority responsible for the matters covered in this
Convention shall ensure that agencies or other appropriate mechanisms exist to
administer the programmes affecting the peoples concerned, and shall ensure
that they have the means necessary for the proper fulfilment of the functions
assigned to them.

 

2. These programmes shall include:

(a) the planning, co-ordination, execution and evaluation, in co-operation
with the peoples concerned, of the measures provided for in this Convention;

(b) the proposing of legislative and other measures to the competent
authorities and supervision of the application of the measures taken, in
co-operation with the peoples concerned.

 

PART IX. GENERAL PROVISIONS

 

Article 34

The nature and scope of the measures to be taken to give effect to this
Convention shall be determined in a flexible manner, having regard to the
conditions characteristic of each country.

 

Article 35

The application of the provisions of this Convention shall not adversely
affect rights and benefits of the peoples concerned pursuant to other
Conventions and Recommendations, international instruments, treaties, or
national laws, awards, custom or agreements.

 

PART X. FINAL PROVISIONS

 

Article 36

This Convention revises the Indigenous and Tribal Populations Convention,
1957.

 

Article 37

The formal ratifications of this Convention shall be communicated to the
Director-General of the International Labour Office for registration.

 

Article 38

1. This Convention shall be binding only upon those Members of the
International Labour Organisation whose ratifications have been registered
with the Director-General.

2. It shall come into force twelve months after the date on which the
ratifications of two Members have been registered with the Director-General.

3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which its ratification has been registered.

 

Article 39

1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into
force, by an act communicated to the Director-General of the International
Labour Office for registration. Such denunciation shall not take effect until
one year after the date on which it is registered.

2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the
preceding paragraph, exercise the right of denunciation provided for in this
Article, will be bound for another period of ten years and, thereafter, may
denounce this Convention at the expiration of each period of ten years under
the terms provided for in this Article.

 

Article 40

1. The Director-General of the International Labour Office shall notify all
Members of the International Labour Organisation of the registration of all
ratifications and denunciations communicated to him by the Members of the
Organisation.

2. When notifying the Members of the Organisation of the registration of the
second ratification communicated to him, the Director-General shall draw the
attention of the Members of the Organisation to the date upon which the
Convention will come into force.

 

Article 41

The Director-General of the International Labour Office shall communicate to
the Secretary-General of the United Nations for registration in accordance
with Article 102 of the Charter of the United Nations full particulars of all
ratifications and acts of denunciation registered by him in accordance with
the provisions of the preceding Articles.

 

Article 42

At such times as it may consider necessary the Governing Body of the
International Labour Office shall present to the General Conference a report
on the working of this Convention and shall examine the desirability of
placing on the agenda of the Conference the question of its revision in whole
or in part.

 

Article 43

1. Should the Conference adopt a new Convention revising this Convention in
whole or in part, then, unless the new Convention otherwise provides-

(a) the ratification by a Member of the new revising Convention shall ipso
jure involve the immediate denunciation of this Convention, notwithstanding
the provisions of Article 39 above, if and when the new revising Convention
shall have come into force;

(b) as from the date when the new revising Convention comes into force this
Convention shall cease to be open to ratification by the Members.

2. This Convention shall in any case remain in force in its actual form and
content for those Members which have ratified it but have not ratified the
revising Convention.

 

Article 44

The English and French versions of the text of this Convention are equally
authoritative.

Date of the Resource: 
1989
Resource Type: 
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