ARBITRATION AND INDIGENOUS PEOPLE’S RIGHTS: A COMPARATIVE STUDY

ABSTRACT

Disputes arise in every field, every transaction or conversation but not much people prefer going to courts for resolving their disputes. Arbitration has become the most preferred medium of alternative dispute resolution, as it facilitates confidential out of court settlement. The procedure of arbitration provides better solutions. Disputes may arise between people who belong to different places, regions, religions, communities, races.

There is tribe called indigenous people, who are discrete social and cultural groups with connection to land and natural resources. They have distinct cultures, languages, traditions, and ways of life that are deeply interconnected with their ancestral lands and natural resources.

In today’s Era there can be disputes arising between indigenous people and other Nations or governments or between the indigenous groups themselves. Arbitration becomes the best solution in such situations.

In this article we will study about the process of arbitration, who are indigenous people along with the rights of these people and how arbitration can help them.

KEYWORDS

Alternative Dispute Resolution, Arbitration, Indigenous People, International Arbitration, Tribal Communities.

INTRODUCTION

Arbitration has evolved into a well-known means of settling conflicts in a number of sectors, such as business, investments, and labour disputes.

The rights of indigenous people can also be protected by appointing independent party who has the knowledge or expertise about the rights and cultural ethics of these groups. Arbitrators with specialized set of skills can play a crucial rule in resolving disputes related to indigenous people.

Any dispute arising between indigenous people and any other party can be easily resolved by opting arbitration. There are various laws made even at the international level to deal with such issues. The rights of indigenous people are respected and valued by all nations, hence, they are given proper equal treatment.

The process of arbitration is adopted only by the consent of both the parties which means that the people of these communities are not bound by the means of disputes resolution. If both the parties consent to resolve their dispute through arbitration only then are it can be adopted as the mechanism for resolving their dispute.

However, there are particular difficulties and factors to take into account when combining arbitration with the rights of Indigenous peoples. The objective of this comparative study is to investigate how arbitration might be used to address the rights of Indigenous peoples by looking at various legislative frameworks, case studies, and international best practices.

Indigenous Peoples from all around the world have similar issues with the defence of their rights as unique peoples, notwithstanding their cultural distinctions.

ARBITRATION DEFINED

Arbitration is one of the most opted and preferred medium of ADR[1]. This is the best out of court third party settlement mechanism. Arbitration is a mutually agreeable method of resolving disputes between parties wherein their disagreements are submitted to an arbitral tribunal, often consisting of one or three impartial arbitrators chosen by the parties themselves or on their behalf.

The rules of the parties’ arbitration agreement, which are frequently found in the clauses of a business contract or relevant investment treaty, govern how an arbitration proceeding is conducted.
Arbitration is renowned for its flexible procedural rules that enable parties to participate in a quick, private, and equitable procedure that ends with a legally binding verdict. It is frequently used in labour, business, and international conflicts as an alternative to judicial litigation. The parties to the dispute mutually consent to opt for arbitration as the dispute settlement mechanism whereby appointing one or more neutral third parties as ‘Arbitrators’.

Its main attributes are-

It is consensual (mutual consent of the parties)
Parties choose the arbitrator
The award passed is binding upon the parties
It is conducted by a neutral third party
It is a confidential process

There can be different types of arbitration methods like

Ad Hoc Arbitration

Ad hoc arbitrations are set up exclusively between the parties and the arbiters. Under the tribunal’s guidance, the parties must design and develop the arbitration process on their own. The arbitration may be conducted under a set of bespoke rules that the parties have created especially for that case, or the parties may elect to adopt a pre-made set of rules.

Institutional Arbitration

Arbitration institutions oversee institutional arbitrations. Procedures are usually carried out in accordance with the arbitration rules that the parties have chosen and that the selected institution has drafted.

WHO ARE INDIGENOUS PEOPLE?

Indigenous peoples are discrete social and cultural groups with common ancestral connections to the lands and natural resources they either currently occupy or were forcibly removed from.

The majority of other indigenous peoples continue to exhibit unique traits that set them apart from other sections of the country’s population.

They are indissolubly tied to the land and natural resources that support their identities, customs, means of subsistence, and physical and spiritual health. When it comes to representation, they often look to traditional leaders and institutions that are distinct from or aside from those found in mainstream culture or society. Nevertheless, many Indigenous Peoples have also lost their languages or are in danger of doing so because they were forced to leave their lands and/or relocate to other territories. While many Indigenous Peoples still speak a language different from the official language or languages of the nation or region in which they live.

Other words, such as tribes, ethnic groups, adivasi, and janajati, may be preferred in various countries. For all intents and purposes, the word “indigenous peoples” can also refer to a variety of vocations and geographic groups, such as hunter-gatherers, nomads, hill people, etc. For years, Indigenous Peoples have been fighting for acknowledgement of their identities, customs, and rights to ancestral lands, territories, and natural resources; nevertheless, throughout history, these rights have consistently been infringed upon.

There are some basic characteristics brought out by the UN in order to interpret the term ‘indigenous people’, like individual self-identification as members of the indigenous peoples and acceptance as such by the community. Distinct social, economic, or political systems; distinct language, culture, and beliefs; historical continuity with pre-colonial and/or pre-settler societies; strong ties to territories and surrounding natural resources; formation of non-dominant social groups as distinct peoples and communities.

With time people and organisations around the world are becoming aware of the valuable existence of these people. The lack of knowledge usually resulted in the violation of their rights. But now, governments are taking steps towards the betterment of indigenous people. In order to guarantee that the opinions and goals of Indigenous Peoples are represented in wider development initiatives, the World Bank collaborates with Indigenous Peoples and governments.

Reducing the multifaceted aspects of poverty while advancing sustainable development requires enhancing land tenure security, fortifying governance and assisting Indigenous systems for resilience and livelihoods.

ARBITRATION AND INDIGENOUS PEOPLE

In the beginning the indigenous people were not a part of the other communities and were always treated disparately. Other people or groups did not treat them equally and in the same way even they weren’t willing to be a part of these communities. They preferred being aloof in order to protect their culture. Slowly, these communities started facing challenges from the other community like the risk of losing their unique way of living and insecurity of their cultural identity. The risk of jeopardizing the rights in the society of an individual as well as the community as a whole persisted.

Cultural heritage protection is considered one of the finest ways to ensure global peace and security and is a core public interest that is strongly related to fundamental human rights.

The indigenous people have now come in the front row, to protect and gain control over their rights at international level. Both domestically and internationally, a renewed understanding of the significance of indigenous rights has evolved in recent decades. The goal of these rights is to protect the unique identities, customs, lands, and resources of indigenous populations. They cover a broad spectrum of economic, social, cultural, and political aspects. Particularly in the last fifty years, there has been a growing understanding of the state’s need to safeguard the social and cultural identities of indigenous peoples.

UN bodies have enacted certain international legal mechanisms that safeguard the rights of indigenous peoples and have methodically codified human rights legislation.

Many of the estimated 370 million indigenous peoples worldwide have either lost or face an immediate threat of losing their ancestral lands due to the exploitation of natural resources, despite the fact that the protection of indigenous rights has gained some momentum at the level of international law since the adoption of the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)[2].

It has prompted UN agencies to look into how certain international legal frameworks might better meet the requirements of these groups, or how specific global issues may impact them.

UNESCO has triggered several procedures to modify its approach in order to rectify this long-standing inequality. Though its full potential will likely take decades to realise, the UNDRIP has undoubtedly raised awareness of indigenous peoples’ rights and spurred change. But given the ongoing, pervasive violations of indigenous peoples’ rights, worries remain. Discrimination against indigenous peoples and violations of their human rights occur throughout the world in numerous

To stop these peoples from exercising their rights, indigenous leaders who have voiced their disapproval of the detrimental effects of such projects have faced threats, harassment, and in some cases, even death. Many families have been forced to depart their homelands due to the confiscation of indigenous lands, which has surely disrupted their customs and relationships to the community. Numerous non-governmental groups working in the human rights sector have witnessed an increase in social protests in response to these circumstances, which have caused broad public uproar.

RIGHTS OF INDIGENOUS PEOPLE

Here are some key rights of indigenous peoples under United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)[3] and International Labour Organization (ILO) Convention No. 169[4], and regional human rights treaties-

Territorial Rights – According to the concept of territorial rights, indigenous peoples are entitled to the lands, territories, and resources that they have customarily owned, occupied, or exploited in other ways. They are entitled to things for their own use, development, and ownership. States must grant these areas, regions, and resources legal status and protection.
Bio-Cultural Rights: -Indigenous peoples possess the bio-cultural rights, which allow them to preserve and revive their traditional customs and traditions. Indigenous peoples own the entitlement to preserve, govern, guard, and advance their cultural legacy, customary wisdom, and customary cultural manifestations, in addition to genetic assets, seeds, medications, and expertise regarding the characteristics of flora and fauna.
Rights to Land and Resources: Native Americans are entitled to possess, exploit, develop, and exercise authority over the lands, territories, and resources that they have customarily held, occupied, or obtained in other ways.
Cultural Rights: Indigenous peoples are entitled to preserve, govern, safeguard, and advance their traditional knowledge, cultural expressions, cultural heritage, and cultural manifestations.
Language Rights: It is the right of indigenous peoples to preserve, utilise, grow, and pass on their languages to coming generations.
Rights to Free, Prior, and Informed Consent: Indigenous peoples are entitled to grant or withhold their FPIC and to engage in decision-making processes that impact their rights, lands, and resources.
Right to a Sufficient Standard of Living and Adequate Housing: Native Americans are entitled to a sufficient standard of living, which includes access to clean water and sanitary facilities, food, and clothing.
Right to Participation and Representation: Indigenous peoples are entitled to representation in organisations and entities that have an influence on their communities as well as the ability to take part in all levels of decision-making that affect their rights, lands, and resources.

HOW CAN ARBITRATION HELP INDIGENOUS PEOPLE

Indigenous peoples may benefit from arbitration in a number of ways, especially when it comes to resolving conflicts involving their resources, territories, and rights. Arbitration can be advantageous in the following ways:

Cultural Sensitivity: Indigenous customary laws, traditions, and cultural practices can be honoured and integrated into the dispute resolution process through arbitration. Indigenous rights and traditions specialists may guarantee that the processes are handled in a culturally sensitive way, building mutual respect and understanding between the parties.
Community Involvement: Through arbitration, stakeholders and Indigenous communities can take part in the settlement of issues that impact them. Indigenous peoples can express their concerns, interests, and viewpoints through meaningful consultation and participation, which helps to create inclusive and well-informed decision-making processes.
Customised Solutions: Arbitration provides flexibility in developing solutions that are specifically suited to Indigenous communities’ needs and interests. When creating remedies and settlements, arbitrators may take into account things like customary land use norms, environmental protection, and the preservation of cultural assets.
Privacy & Confidentiality: Arbitration proceedings can be carried out in a secret and confidential manner, safeguarding Indigenous communities’ interests and sensitive data. Protecting confidentiality reduces the possibility of outside influence or media attention by keeping talks, negotiations, and settlements inside the boundaries of the arbitration process.
Speed and Efficiency: When compared to typical court action, arbitration frequently provides a quicker and more effective way to resolve conflicts. Indigenous communities can obtain prompt resolution and closure by avoiding drawn-out court fights and significant delays through the use of expedited and simplified procedures.
Enforceability: Arbitration verdicts are often binding and enforceable against the parties, offering a way to put arbitrated conclusions into action. The effectiveness and legitimacy of the arbitration process are increased by its enforceability, which guarantees that agreements, settlements, and remedies achieved through arbitration are legally recognised and upheld.
International Recognition: Arbitration provides a means of pursuing justice and responsibility in situations involving cross-border conflicts or abuses of Indigenous rights as defined by international law. International arbitration courts have the authority to settle conflicts between nations, businesses, and other organisations. This gives them a global platform to discuss difficult legal and human rights matters.

In general, arbitration can help Indigenous peoples resolve conflicts, uphold their legal rights, and further their interests in a fair, equitable, and culturally relevant way. Arbitration supports the global quest of justice, reconciliation, and sustainable development for Indigenous people by encouraging communication, cooperation, and respect for Indigenous rights and values.

ADVANTAGES FOR INDIGENOUS PEOPLE AND LOCAL COMMUNITIES

ADR gives indigenous peoples and traditional and local communities a framework for conflict resolution that takes into account the ethical, cultural, and historical issues.
ADR provides an opportunity to identify various value systems, permit the use of customary law procedures, identify the legal and extra-legal aspects of a dispute, and propose remedies that are suitable for the local culture.

A further benefit is that indigenous peoples and traditional groups can represent themselves in court without the need for costly or unreachable legal representation. Even their preferred language may be used for the proceedings.

ADR procedures can assist in clearing up misconceptions regarding the intricate aspects of intellectual property law and the various contexts in which it is applied, understood, and interpreted, including both commercial and non-commercial ones.

CONCLUSION

In summary, arbitration presents a great deal of promise as a process for settling conflicts involving Indigenous peoples because it provides a platform where consideration for cultural sensitivity, community involvement, and tailored solutions can be given priority. Arbitration can support inclusive and equitable processes that cater to the particular needs and interests of Indigenous communities by upholding Indigenous customs, traditions, and rights. Furthermore, the efficiency and accessibility of conflict resolution for Indigenous peoples are enhanced by the confidentiality, promptness, and enforceability of arbitration procedures. But there are still issues with protecting Indigenous cultural heritage, ensuring meaningful Indigenous engagement, and resolving the power disparities that underlie many Indigenous conflicts.

In order to fully use arbitration as a weapon for advancing Indigenous rights, fostering reconciliation, and promoting sustainable development, it will be necessary to make more efforts to improve Indigenous representation, capacity-building, and awareness of arbitration procedures. For Indigenous peoples worldwide, arbitration can be a means of achieving empowerment, healing, and constructive change by upholding the values of respect, reciprocity, and fairness.

REFERENCES

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Indigenous Peoples at the United Nations, United Nations, last visited on (26-02-2024), https://www.un.org/development/desa/indigenouspeoples/about-us.html
What is Arbitration?, WIPO, last visited on (25-02-2024), https://www.wipo.int/amc/en/arbitration/what-is-arb.html
What is Arbitration?, HKIAC, last visited on (26-02-2024), https://www.hkiac.org/arbitration/what-is-arbitration
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Siegfried Wiessner, Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis, Harvard Human Rights Journal / Vol. 12, https://journals.law.harvard.edu/hrj/wp-content/uploads/sites/83/2020/06/12_Wiessner_Rights-and-Status-of-Indigenous-Peoples.pdf
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Michael Coyle, ADR Processes and Indigenous Rights: A Comparative Analysis of Australia, Canada and New Zealand, last visited on (28-02-2024), https://www.researchgate.net/publication/228194571_ADR_Processes_and_Indigenous_Rights_A_Comparative_Analysis_of_Australia_Canada_and_New_Zealand

[1] Alternative Dispute Resolution (arbitration, mediation, conciliation, judicial settlement)

[2] 107th plenary meeting 13 September 2007, https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf

[3] 107th plenary meeting 13 September 2007

[4] C169 – Indigenous and Tribal Peoples Convention, 1989 -entered into force on 5 September 1991

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