Welcome to
Indigenous Policy
Journal of the Indigenous Policy Network (IPN)
Formerly American Indian Policy

   
XX

Vol. XVIII, No. 1___Spring, 2007

ARTICLES

Tim Giago, “'Chief Illiniwek' Does His Last Dance.”
Michael Posluns, “Some First Nations Policy Developments in Canada: Several Recent Developments, Largely Beyond The Grasp Of Government."
Rarihokwats, Four Arrows Analysis, “Hype & Glitter or Fundamental Change? --The Effect of Conservative’s ‘New Approach’ to Land Claims Still To Be Measured."
Céline Germond-Duret, “Development Interventions and Indigenous Peoples: The Power of Destabilization.”

 

 

 

 

‘CHIEF ILLINIWEK’ DOES HIS LAST DANCE

Tim Giago, February 19, 2007

The news is out that the University of Illinois will drop its Chief Illiniwek mascot. It just goes to show that not all 'traditions' are honorable. It all began in 1926 when an Illinois student named Lester Leutwiler put on a homemade Indian costume and pranced around the football field at halftime. It will come to an end on Wednesday when the current mascot, Dan Maloney, will do the splits and other non-Indian dance steps for the last time.

This time-honored tradition faced its first objection when a young lady of Spokane Indian heritage, a graduate student at the University of Illinois, named Charlene Teters, stood alone and fearful at a football game in Champaign holding a small sign that read, 'We are human beings and not mascots.' Many of the fans and alumni of the 'Fighting Illini' were at first puzzled and then angered at the audacity of this young Indian lady. Some spat on her as they walked past and others flipped burning cigarettes at her. But she tearfully stood her ground because she had grown increasingly sick and tired of having her people insulted every Saturday for the sake of a football game.

To stand alone in the face of such fury and anger from a supposed educated segment of America's white society took courage and determination, but the constant insults and abuse soon caused Ms. Teters to waver. Her fear was mostly for that of her children and not herself. But tell me this; why should any person fear for their very

lives for protesting the use of Indians as mascots for America's fun and games?

After observing a particular crude presentation at the halftime of a Washington Redskins football game in 1982 I wrote a column questioning the use of human beings as mascots in a fashion that demeaned them. The incident involved a group of fans painting a pig red, placing a feathered bonnet on its head and then chasing it around the fifty-yard line as halftime entertainment. The first thing that struck me was what if these fans had painted a pig black and placed an Afro-wig on its head and did this stunt at halftime? Even 25 years ago this would have gone over about as well as a fart in church.

I was stunned by the hate mail I received for this column. I was asked to be on a national radio call-in show to talk about the use of Indians as mascots. Once again, the hate directed at me spewed from the radio. Mind you, I am Native American, Oglala Lakota, born and raised on an Indian reservation in South Dakota. Some of the callers suggested that, 'If I didn't like it, go back to wherever in the hell I came from.' One day I got a call from Charlene Teters. She told me she was hurt and frightened by the attacks upon her for standing up against the use of Chief Illiniwek as her school's mascot. She said she was going to quit school and go home. I said, 'That is your choice Char, but if you quit, they win.' Well, she didn't quit but instead continued her protests even beyond the day she graduated. Soon hundreds of Native Americans showed up on Homecoming Day at the University of Illinois to join Ms. Teters in her protest.

I joined the protest one year as a newspaper reporter. I walked near the protestors taking pictures as they marched. I was once again overwhelmed by the degree of hatred aimed at these protestors. Profanity such as 'F- you squaws' or 'Get the hell out of here you drunken Indians,' rained down on the protestors on their march to the stadium. My God, what a proud tradition! How can a people exude such hatred for real Indians while honoring a phony chief? Howard Wakeland, president of the Honor the Chief Society said after the decision to remove Illiniwek as the school's mascot that it was like putting the mascot in a museum. 'Put him in a cage and walk by and

say that's our symbol. That seriously kills the heart of the chief.' There will always be those who just don't get it.

In the minds of most Native Americans it is high time Illiniwek was placed in a museum. I hope the traditional Sioux regalia the University purchased from Chief Fools Crow under false pretenses are returned before their mascot is put on display. Fools Crow believed the University purchased the outfit for historical and educational purposes. When I showed him a photo of how the costume was actually used he was furious. Before his death several years ago he asked, 'How can I get them back?' The Oglala Sioux Tribe is now demanding their return thanks to Eileen Janis, the former vice president of the tribe.

The University of Illinois joined Stanford, Marquette, Dartmouth and other colleges and universities that saw their traditional mascots as racist and did away with them. There are still handful Indian tribes that have sold out their heritage and allow colleges to use their images as mascots. And there is still a professional football team that uses the color of a people’s skin for its mascot.

I honor Charlene Teters for her courage and determination. She has fought for and helped bring about many changes at colleges like Stanford, Marquette, Dartmouth and more that have dropped their Indian mascots and declared them as racist. I will consider America grown up when it finally determines that to name a professional football team 'Redskins' after the color of a people's skin is one of the last bastions of racial prejudice in this country.

McClatchy News Service in Washington, DC distributes Tim Giago's weekly column. He can be reached at P.O. Box 9244, Rapid City, SD 57709 or at najournalists@rushmore.com. Giago was also the founder and former editor and publisher of the Lakota Times and Indian Country Today newspapers and the founder and first president of the Native American Journalists Association. He was a Nieman Fellow at Harvard in the class of 1990-1991. Clear Light Books of Santa Fe, NM (harmon@clearlightbooks.com) published his latest book, Children Left Behind.

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SOME FIRST NATION POLICY DEVELOPMENTS IN CANADA: SEVERAL RECENT DEVELOPMENTS, LARGELY BEYOND THE GRASP OF GOVERNMENT.

Michael Posluns, June 19, 2007.

The concept ‘Indian’ is a creation of statute. Prior to the arrival of Europeans, the Aboriginal peoples who inhabited the region that would become Canada had their own forms of social organization with their own names by which to identify their social groups.

Madam Justice Carol S. Ross, McIvor v. the Registrar, Indian and Northern Affairs Canada at para. 8.

It seems to me that it is one of our most basic expectations that we will acquire the cultural identity of our parents; and that as parents, we will transmit our cultural identity to our children. 

Madam Justice Carol S. Ross, McIvor v. the Registrar, Indian and Northern Affairs Canada at para. 186

Several different developments are unfolding in Canada each of which will have a deep affect on the nature of Aboriginal and treaty rights as they are guaranteed under section 35 of the Constitution Act, 1982. Each of these developments appear on the surface to be quite independent of one another. Yet, in their consequences for strengthening Aboriginal rights, treaty rights and the inherent right to First Nations self-government each of these developments are better understood as one of several interwoven braids.

Where does the braid begin? Is there a point where a single thread is found, which pulled carefully and strategically holds the key to unraveling the whole cloth? For readers unfamiliar with the history of First Nations relations in Canada, the essential details can be summed up in two or three sentences. 

From before Confederation in 1867, Canada (and the colonial provinces that came together to form a largely independent dominion at Confederation) followed policies ostensibly intended to “civilize” the various First Nations, and to deny the treaty or nation-to-nation relationship that the various First Nations had enjoyed with Great Britain in the 18th century. A variety of policies aimed at forced assimilation constitute the dominant themes of the history of the Indian Affairs Branch through most of the 20th century. By 1951, Canada had imposed by statute an ungodly long list of civil disabilities on Indians. Most, though not all of these disabilities were repealed in the 1951 revision of the Indian Act. Most of the First Nations leaders who emerged in the next 20 years had apprenticed to an earlier generation of leaders for whom the celebration of traditional ceremonies and the pressing of Indian land claims were criminal offences.

In 1982, Canada adopted the Constitution Act, 1982, a document that, in addition to setting out a number of formulas for future amendments of the Canadian Constitution, also included Part I, The Canadian Charter of Rights and Freedoms (“the Charter”), and Part II, The Rights of the Aboriginal Peoples of Canada (“section 35”). (2) It is fundamental to an understanding of these two sets of rights that to keep in mind that they are distinct and separate parts of the Constitution Act. It is also fundamental to an understanding of their application by the courts that, while they are distinct and separate, they are also intimately bound up with one another. Sadly, little of the attitude of the senior officials in the Indian Affairs Branch has changed in the quarter century since Parliament adopted the Constitution Act, 1982. Sadly, the Justice Department, the fount of all federal government legal thought, sees its role, not primarily in fostering an appreciation for the two bundles of rights newly added to the Constitution but as defending the conduct of senior officials and the policies of the ministers of the day.

This article examines a number of current and critical conflicts for which this stage has been set. The conflicts on which I will focus will be ones which have surfaced as particularly critical in the past year.

1. McIvor v. The Registrar, Indian and Northern Affairs(1)

In 1985, Parliament adopted Bill C-31, a set of amendments to the Indian Act intended to repeal the more noxious provisions discriminating against Indian women in the provisions regarding membership in an Indian band. Parliament moved at that time largely because the equality rights provisions of the Charter (section 15) were scheduled to come into effect in April 1985, three years after the rest of the Charter. It was clear that the previous membership provisions would not meet any kind of “Charter challenge.” The old membership rules were strongly inclined to favor patrilineal inheritance of membership. Most widely offensive was the provision that women who married outside their band were to lose their band membership. This ran against the traditional practice of many First Nations which followed the mother’s line in establishing an inherited membership. It also established the Parliament of Canada, rather than the various First Nations, would establish the membership rules (citizenship code) of First Nations across Canada.

If a woman gave birth out of wedlock, unless the mother produced the father’s name, the Registrar was entitled to presume that the father was non-Indian, and, thereby, deprive the child of membership in his mother’s community. This provision also deprived single mothers of the support of their children in their old age.)

Two different interests (possibly three) had long pressed for reform of the membership laws. Women’s groups and women parliamentarians had identified this as a “women’s issue” while First Nations saw the right to define citizenship as fundamental to “the inherent right to self-government.” Sadly, during all the years of constitutional debate (1970 to 1982), not one woman parliamentarian from the two main Canadian political parties of that day (Liberals and Progressive Conservatives) ever spoke of the need to increase the land base and the financial base of bands if they were to increase their numbers by as much as 50%. In effect, the non-Indigenous women parliamentarians wanted equal rights for Indian women but they did not object if the total quantum of rights were steadily eroded by governments representing their own parties.

C-31 (as it continues to be popularly known) made a distinction (essentially for the first time) between membership in an “Indian band” and registration as a status (card bearing) Indian under the federal Indian Act. Although this distinction was supposed to allow bands to take increasing control of their own membership (citizenship) laws, the practice of the past 22 years has been for the government to fund programs administered by band councils based on the estimates of populations drawing on Indian Affairs’ registry. In short, while a band can put a person onto their citizenship list, there will be no additional revenue for schools, housing, health care, public health, roads, sewers or other infrastructure.

On June 8 of this year, Madam Justice Carol Ross of the B.C. Supreme Court (the superior trial court of the province of British Columbia)(3) declared that the membership sections of the Indian Act, sections 6.1 and 6.2 were inconsistent with the equality rights provisions of the Charter. Although these sections had been introduced to replace the previous discriminatory provisions, Justice Ross found that although they solved some problems they created others. 

Although many women (and a good many men as well) were reinstated as the result of the adoption of C-31 there were a good many others who continued to be left out. Further, the benefits accruing to a person registered under 6.1 were considerably greater than the benefits accruing to a person registered under 6.2. A person registered under 6.1 was assured that his or her children would inherit and retain membership in their parent’s First Nations community. A person registered under 6.2 (typically referred to as “a 6.2” had no such assurance, unless they managed to marry “a 6.1”.

This was exactly the situation in which Sharon McIvor and her son Charles Jacob Grismer. Following the enactment of C-31, the Indian Affairs Registrar (long a force to be reckoned with in the lives of ordinary Indians who crossed his path) offered to reinstate Sharon McIvor under the less favorable terms of 6.2. Her son would not be reinstated. Ms. McIvor, a lawyer and professor, chose to go to court rather than to accept this perpetuation of the registrar’s tyranny.

Justice Ross, in her 144-page judgment, reviewed much of the history of “Indian status” (registration under the Indian Act) cataloguing the myriad ways in which the Indian Affairs Branch had dominated Indian culture. She also reviewed both the parliamentary debates on C-31 and the proceedings of the House of Commons Indian Affairs hearings on C-31. She relied on the statements of the then Minister of Indian Affairs, David Crombie, that the purpose of C-31 was to end the longstanding discrimination against Indian women while pointing the way to First Nations control of their own membership after Parliament had corrected its own past errors. Justice Ross then points to the various ways in which discrimination is perpetuated rather than curtailed in ss. 6.1 and 6.2. Based on those findings, insofar as the two sections bestowed different benefits on different members, she declared those sections inconsistent with the Charter. In keeping with a longstanding practice of the Canadian courts in dealing with Charter issues, Justice Ross then allowed one year before her ruling would take effect, so as to allow Parliament to develop a solution of its own devising, subject to the rights guaranteed to all persons in Canada under the Charter and to First Nations and other Aboriginal communities under Part II (section 35). 

Whether or not the present federal Government will be prepared to sponsor a bill setting out new membership rules which will also attract the support of the major First Nations and Aboriginal political organizations as well as the other parties in a minority Parliament remains to be seen.

The McIvor decision is but the latest in a long line of decisions in which the courts have upheld the rights of First Nations collectively under section 35 and their individual members under the Charter. The earliest of these decisions often took even the supporters of First Nations by surprise, albeit pleasantly by surprise A good number of the more recent decisions might be considered to have been fairly predictable given the large body of precedent that the courts have developed over the past quarter century in regard to both sets of rights. While Justice Ross goes to some lengths to establish that she is interpreting the membership sections within the lines set down in previous equality rights decisions of the Supreme Court of Canada, it would still be fair to say that there was an element of surprise when her decision came down.

Two conflicting sets of interests within the larger Indigenous community in Canada will be delighted by Justice Ross’s decision but may not readily agree on amendments that would create membership rules consistent with the Charter. (1) The Native Women’s Association of Canada (NWAC), its affiliates across Canada and their many non-Indigenous supporters would want the widest possible definitions. (2) Another point of view is likely to be heard from various First Nations, on whose membership lists, the Registrar has placed people who do not have any ancestral connection to their community and whose presence in the community represents a further drain on scarce resources while the Indian Affairs Branch and the federal cabinet remain unwilling to increase the resources available to communities.

NWAC has attracted widespread support from non-Indigenous (mainly white) women’s groups who appear to share a belief that the quality of governance of First Nations communities will greatly improve if membership laws are made as wide as possible. The opposing view holds that the ever diminishing resources, for programs such as housing and schools, creates ever greater pressure on chiefs and councilors and that, in many instances, the total resource pool is simply too small to allow for a more equitable distribution.

What is most often overlooked by parliamentarians (for whom the NWAC and non-Indigenous women’s argument is generally more appealing) is the succession of public inquiries which have stipulated that the Indian Affairs Branch has so long been part of the problem that it is inconceivable that it could not become part of the solution.  This was a specific finding with consequent recommendations of the 1983 Commons Special Committee on Indian (First Nations) Self-Government. It was also a finding and recommendation of the 1996 report of the Royal Commission on Aboriginal Peoples. Lastly, a 2000 Report of the Senate Committee on Aboriginal Peoples, entitled Forging New Relations made a similar finding.

The Overall Direction

The overall direction that is emerging in Canadian “Indian Policy” is not one that emanates from either the federal government or from the major, federally funded, Aboriginal organizations. More and more, policy is emerging within the lines laid down by the courts as they interpret both the Charter and section 35. It would be incorrect to say that it is the courts that are developing policy. As in McIvor, the court rules whether or not statutory provisions are inconsistent with the Constitution. It is then the duty of the government, Parliament and the First Nations organizations to develop policy and consequent statutory provisions that are consistent with the Constitution.

At the heart of the present difficulties, many believe, is the desire of the present Canadian government to move toward policies that would more closely resemble the assimilationist policies advocated early in his tenure as Prime Minister by Pierre Elliott Trudeau and that are better known to Americans in terms of the U.S. Dawes Act.

One bill presently before the Commons Aboriginal Affairs Committee, bill C-44 of the current session, would repeal the provision exempting Indian band councils and their administrations from the Canadian Human Rights Code. In principle, this sounds like “a non-brainer.” Only when one opens both eyes at once does it become obvious that, for all the flaws in the present Indian Act, if this bill were allowed to take its course, most of the protections of Indian lands and cultures would be struck down. The Government has steadfastly avoided anything resembling “consultation”, “reconciliation” and “accommodation” as those terms have been introduced by the Supreme Court of Canada.  Expert witnesses appearing before the committee have pointed out that much of the fault for which band councils are commonly blamed arise from their agreeing to administer federally funded programs – the policies at issue are not First Nations policies, they are federal government policies. 

Every opposition party in Parliament presently opposes this bill. The Government continues to press for its speedy passage. MPs on the Committee repeatedly ask the expert witnesses familiar with the Supreme Court rulings whether their own hearings do not constitute a form of consultation. The witnesses say that committee hearings are not consultations. Consultation, as the court has described it, requires actual dialogue between First Nations leaders and the minister who proposes to sponsor legislation affecting First Nations. 

The courts have repeatedly said that “consultation” requires two parties actively listening to one another and doing that listening before a decision is taken into the public sphere. When that kind of consultation comes to Ottawa, that will be the beginning of a genuine reconciliation between Canada and the First Nations. That kind of consultation will represent what Martin Buber described as “genuine dialogue.” When federal Ministers choose to listen in that way, there will be less and less “Indian policy” in Ottawa and more and more “First Nations relations.

One of the many remarkable features of McIvor is Justice Ross’s observation near the outset, “The concept ‘Indian’ is a creation of statute.” Anything resembling genuine autonomy for First Nations, genuine self-government, requires that the government cease and desist from creating concepts which it then imposes on Indigenous cultures as well as individuals. A genuine “reconciliation,” a term much used in recent decisions on Aboriginal issues by the Supreme Court of Canada, might require a kind of “no-policy,” i.e., a policy under which the federal government steadfastly declines to make policy, but, instead, protects the space within which each of the “several First Nations” becomes free to establish their own policies, laws, customs and practices.

Michael Posluns is an independent scholar specializing in First Nations and parliamentary relations, and legislative history. He may be contacted at: mposluns@accglobal.net

FOOTNOTES

(1)     Affairs Canada 2007 BCSC 827.  The full decision of the Honorable Madam Justice Carol Ross may be found at http://www.canlii.org/en/bc/bcsc/nav/date/2007_06.html

(2)   These are the most widely used short forms for the Charter of Rights and Freedoms and “The Rights of the Aboriginal Peoples of Canada.” Although the Aboriginal Peoples provisions constitute the entirety of Part II, they are also the entirety of section 35, with its four sub-sections. “Section 35” is the universally recognized reference amongst Aboriginal leaders, lawyers and scholars.

(3)   The Canadian court system is generally described as “a unitary system” although the legislative and executive branches of government are federated, i.e., separate federal and provincial legislatures and cabinets.

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HYPE & GLITTER, OR FUNDAMENTAL CHANGE? THE EFFECT OF THE CONSERVATIVE'S "NEW APPROACH" TO LAND CLAIMS STILL TO BE MEASURED.

Rarihokwats. 

<e-notes> from four_arrows@canada.com
Evening Edition -- Ottawa, 12 June 2007

A long-awaited announcement by the Conservative Government to set up a new land claims process was delivered today by Prime Minister Stephen Harper. “Canada will be a better, stronger, more united country when all its citizens enjoy full equality of opportunity,” declared Harper.

At first glance, the news was met with great approval. AFN National Chief Phil Fontaine praised it “as one piece in a large puzzle”. Vice-Chief Shawn Atlee said he was “very happy”. 

Mr. Harper called the plan “revolutionary”, “a quantum-leap forward”, “an historic breakthrough”. “Instead of letting disputes over land and compensation drag on forever, fuelling anger, frustration and uncertainty, they will be solved once and for all by impartial judges," Harper said. As the details sunk in, however, it seems the highly-touted announcement falls far short of either the promises or the minimum  requirements of fixing the badly-broken and discredited land claims process.

Although the media has speculated that the timing of the announcement was intended to reduce the potential of confrontation, chances are it will have little effect in reducing the heat expected for the Day of Action June 29.

At Caledonia, speaking for those at the former housing development since February 2006, Jamie Jamieson told Sue Bailey of Canadian Press, "Right here and now, it doesn't change one thing. . . It doesn't settle anything. It doesn't give me hope. At any point, Stephen Harper could step in ... but he doesn't."

The government’s plan sounded very much like a remake of the highly-criticized Bill C-6, passed by Parliament in 2003 but not proclaimed as law. The main difference is the new tribunal’s authority will increase to $150-m. Claims over that amount will be settled by Cabinet.

Problematic Details of the “New Approach”

1. There will be no reform of “Outstanding  usiness”, the federal government’s policy on specific claims.  The legal test to whether a claim is valid will be based upon an assessment of whether there is an “outstanding lawful obligation”. Other  criteria in the policy will not be changed. Problem: The Senate Report recommended adopting New Guiding Principles including fairness and dialogue in developing reforms.

2. The Government states the Tribunal will be staffed by three existing, retired, or to-be-appointed superior court judges, later to be increased to a total of six. Decisions of the Tribunal will be final. However, an application for judicial review could be made to the Federal Court. Problem: apparently the tribunal will get claims only after “negotiations fail”. In other words, until the government allows a claim to go to the tribunal, it will remain in “negotiations”. Problem: three judges? 800 claims in the backlog and more coming in?

3. Access to the Tribunal will be “metered”. That is, no more claims can be before the Tribunal than it has money to award for the year. If, for example, the Tribunal makes five awards totalling $250-m, no other claims can be accepted by the Tribunal until the following year.

4.  The government will make unilateral appointments of the judges. “Impartial judges” are not likely to be seen as being the equivalent of  “a truly independent tribunal.”

5.  The Government says Indian Affairs officials will work with the AFN over the summer to draft a bill for introduction in the House in September.  Problem: Bills are drafted by highly-specialized Justice Department experts, not by Indian Affairs bureaucrats. Bills are drafted according to “drafting instructions” which have been passed by Cabinet. Bills then go back before Cabinet for approval before being introduced. Problem: The announcement did not set out what the government would insist upon as pre-determined provisions of the Bill, meaning already-passed “drafting instructions”. Previous experience (Bill C-52 in 1984, the last time it was tried) was that the “jointly-written Bill” turns out not to be the Bill actually introduced in the House. As Anita Neville, Liberal critic, said, she hoped “the legislation has not already been written.”

6. Minister Prentice says he will endeavour to get the Bill passed within 6 months, with the assistance of the AFN to get opposition parties on board.  Sept – Dec:  Appointments will be made to the Commission and 3 judges to the Tribunal.  Jan 2008: the new Commission and Tribunal will be operational. Problems: accommodations, staffing, etc., are more likely to take up to three years.

7. No further consultation is planned on the “new approach”. DIAND states, “As there have been numerous studies and extensive consultations with First Nations on these issues in the past, the goal is to conclude these discussions [with the AFN] quickly so legislation can be brought forward in the fall of 2007.”

8.  The Prime Minister said the Bill would help clear a backlog of more than 800 cases. Problem: the announcement contained no details whatsoever as to how this was to be accomplished.

9.  The Prime Minister said the legislation, if passed,  would commit $250-million a year for ten years passed, for specific land-claims research and compensation. Problem: tradition is that one Parliament cannot make commitments another Parliament has to fulfil. Usually five years is the outside limit.

10.  The Prime Minister said the Indian Specific Claims Commission would be refocused to concentrate on dispute resolution. Problem: Government must consent for a claim to go to dispute resolution. 

11.   The current DIAND system is designed to permit only a limited number of claims from moving forward each year to match funds allocated for settlements. Until there are increased human resources dedicated to the claims process in DIAND, including additional money to pay Justice Canada for its legal services, the current backlog will continue. Problem: no additional funds were announced.

12. Currently, Indian Affairs officials and Justice Department officials work in separate compartments. Huge problems result with lost files, lack of coordination, poor communications. The Senate Report recommended they work in teams in a common location. Problem: the new approach did not address this recommendation.

13.  Most First Nations do not have extra money on hand to properly research and prepare claims submissions. The Senate Report recommended funding be provided. Problem: this recommendation was not addressed .

            Other Government Proposed Changes

What new measures will be put in place to speed up internal government procedures?

            The goal is for all new claims to receive a preliminary assessment within six months to identify those that qualify for negotiation and to sort them for faster processing. Similar claims will be bundled at the research and assessment stages to speed up decisions regarding their legitimacy. Small value claims will undergo an expedited legal review to quickly conclude whether they will be accepted or declined for negotiation.

            In addition, there will be a streamlined approach to processing in order to better address the diversity and complexity of specific claims. Special efforts will be made to negotiate small value claims more quickly -- as those account for about 50 per cent of cases now languishing in the clogged system. Very large claims, valued at $150 million or more, which currently bog down the system, will be referred for separate processing so they can be dealt with outside the policy and processed in a way that better responds to their size and complexity.

What tools will be used to help the government sort claims for processing?

            Key to this new approach will be maximizing the wealth of research studies and data amassed over the past thirty years as Canada has worked on these issues. Greater use will be made of existing data bases and other easily accessible sources of information to support the early review process and other improvements.

Will other tools be used to resolve disputes before resorting to the tribunal?

            Every reasonable effort will be made to achieve negotiated settlements and cases would only go to the tribunal when all other avenues have been exhausted. Before that happens, Canada and First Nations must have somewhere to turn when negotiations sour. Mediation is an excellent tool that can help parties in a dispute to reach mutually beneficial agreements. Canada recognizes that this tool should be used more often in stalled negotiations and is committed to increasing its use.

What will happen to the current Commission once the new tribunal is in place?

            The Indian Specific Claims Commission (ISCC) has been of assistance to Canada and First Nations, providing valuable facilitation and mediation services over the past sixteen years. Once the new tribunal is in place, it will be important not to lose the Commission's experience and expertise in this crucial area.

            To make sure this doesn't happen, the ISCC will no longer conduct any new inquiries into claims that have been rejected. Its mandate will be changed to focus exclusively on dispute resolution services. These services can help Canada and First Nations in over-coming impasses at all stages of the process. As a third party, the revitalized Commission would only consider claims as defined by the Specific Claims Policy.

Will the ISCC continue to operate while work to establish the tribunal is underway?

            Yes. A transition plan will be developed to ensure that work presently underway by the current Commission can be properly completed in the coming year, if that is the wish of the First Nation with the rejected claim.

The Senate Report:
 Does The “New Approach” Measure Up?

            In February 2007, the Senate adopted a report of the Standing Senate Committee on Aboriginal Peoples, chaired by Senator Gerry St. Germain. The government claimed the announcement “mirrors closely” recommendations made in that report, entitled, Negotiations or Confrontations? It’s Canada’s Choice. The report’s recommendations and the Government’s “New Approach:

1) Increasing Funds for Settlements

            That the Government of Canarda establishes a dedicated fund for the payment of SpecificClaims settlements. Accepted. That Specific Claims be identified as contingent liabilities. No action.

These funds shall:

            i) not be allocated to other spending priorities. Partially accepted.

            ii) not lapse at the end of the fiscal year and any unused funds in a given fiscal year be carried forward to subsequent fiscal years. Accepted.

            iii) be for an amount no less than $250 million per year with said amount to be allocated annually to the fund. Accepted.

2) Establishing Independent Body within 2 Years

            i) That the Government of Canada start work immediately to establish a new body independent of government with the mandate and power to resolve Specific Claims. Partially accepted. 

            ii) That the new body be established in full partnership with First Nations. Not accepted.

            iii) That the joint process for establishing the new body be sufficiently resourced  to enable the body to be operational within two (2) years of the next budget

date. Not known

            iv) That the new body be fully capable of reaching settlement agreements on claims within five (5) years of their submission to the independent body. Not dealt with.

            v) That the Government of Canada repeals the Specific Claims Resolution Act. Not dealt with.

3) Improving the Existing Process by Providing Additional Resources.

            i) That the Government of Canada increase the financial and human resources for Specific Claims resolution at the Department of Indian Affairs and Northern Development (DIAND) and the Department of Justice (DOJ) in order to improve the existing process and thus move a significant portion of the unresolved claims forward to resolution before the new body is in operation. Not done.

            ii) That the Government of Canada ensures that human resources assigned to Specific Claims at DIAND and DOJ are working in teams in a common location in order to improve communication, file management, and the timely resolution of valid claims. Not done.

            iii) That the Government of Canada provide sufficient funding for the human and financial resources that First Nations require to research and prepare their claims submissions. Not done.

            iv) That the Government of Canada ensures that First Nations have equal access to government records necessary for documenting their Specific Claims. Not addressed.

4) Adopting New Guiding Principles

            i) That the principles of fairness, inclusion, dialogue and recognition of regional differences be used as guidelines for both the development of a new independent body and for any reforms to the existing process in the interim. Not done. Contrary position taken.

The 1998 Joint Task Force Report: Does the “New Approach” Measure Up?

According to Minister Prentice, the legislative elements of new specific claims reform initiative follow the main recommendations of the 1998 Joint Task Force Report.

That Report set out a draft legislative proposal for a reformed specific claims process, defining its key features as including:

            Elimination of Canada’s conflict of interest through an independent legislative mechanism, to report directly to Parliament and First Nations. The new approach does this.

            Establishment of both a Commission to facilitate negotiations, and a Tribunal to resolve disputes in cases of failed negotiations. The new approach appears to do this  – but only for those claims that the government agrees to negotiate, and for those that make it to the door of the tribunal.

            Tribunal authority to make binding decisions on the validity of claims, compensation criteria and compensation awards, subject to a budgetary allocation of settlement funds over a five-year period. The potential is there, but the answer will depend upon the legislation.

            Definition of issues within the jurisdiction of the Commission. Appears to be no change in claims policy in this regard.

            Independent funding for First Nations research and negotiations. Not known if this will be so.

            Joint review after five years, to include consideration of outstanding matters such as lawful obligations arising from Aboriginal rights. Uncertainty as to whether review will be joint, and whether other issues will be included.

AFN Resolution, 2004
Among The Concerns That Must Be Addressed In The Specific Claims System Are:

A Balanced And Fair Appointments Process (Not Agreed to in New Approach), 

The Independence Of The New Bodies (Degree of independence not known at this time)

Proper And Lawful Definitions Of Specific Claims (There will be no change in policy)

The Need For Efficient And Expeditious resolResolution Of Claims (not known at this time)

Fair Access To The System For All Claims,  Including Larger Ones (not known at this time)

And That Adequate Resources To Ensure Proper Functioning Of The System Are Provided. (Not addressed)

A DIAND History

History of Calls For and Efforts to Create an Independent Tribunal on Specific Claims

<http://www.ainc-inac.gc.ca/ps/clm/fct1-eng.asp>

Since 1947, there have been numerous calls for an independent body to adjudicate specific claims. Over the past 60 years, the concept of such an independent body has been a recurring theme in Canadian public policy discussion. There have also been several attempts over the years to create an independent claims body with the power to make binding decisions on government. However, to date, none of these initiatives has succeeded.

1947: In July 1947, the Special Joint Committee of the Senate and the House of Commons reported:

"That a Commission, in the nature of the Claims Commission, be set up with the least possible delay to inquire into the terms of the Indian treaties... and to appraise and settle in a just and equitable manner any claims or grievances arising thereunder.”

1961: In 1961, a Joint Committee of the House and Senate reiterated the recommendation for a Claims Commission. In March 1962, the first draft legislation for a Claims Commission was approved by then Prime Minister Diefenbaker's Cabinet; however, this draft legislation was never introduced because of the 1963 election call.

1963: Bill C-130, entitled the Indian Claims Act, was introduced into the House of Commons by then Prime Minister Lester Pearson on December 14, 1963, but withdrawn to permit consultation with First Nations.

1965: An Act with the same title was re-introduced by the Prime Minister Pearson's government on June 21, 1965, but died on the Order Paper due to the 1965 election.

1969: For whatever reason, the Indian Affairs chronology omits the Indian Claims Commission which was a part of the 1969 White Paper, whose objective was to make Indians “disappear” within Canada’ legal system. To accomplish this, claims would have to settled once and for all, a process the government estimated could take three years. University of Regina President Lloyd Barber took a leave of absence to do take on the task. [1]

1973: Calder decision, Supreme Court of Canada Canada's Specific Claims Policy was established to assist First Nations in addressing their specific claims through negotiations with the government as an alternative to litigation. A process was put in place to deal with these claims, which includes an assessment by Canada to whether it owes a lawful obligation to a First Nation and negotiation of a fair and just settlement to honor its obligations.

1979: an unpublished report prepared for Canada about its administrative process for resolving specific claims cited 'conflicting duties' in the federal government's involvement in claims settlements. The report recommended the creation of an independent body which would "for all purposes be a specialized court."

1983: the "Penner Report" called for a quasi-judicial process for managing failed negotiations and the neutral facilitation of negotiated settlements.

1990 (March): the House of Commons Standing Committee reiterated the need for an independent claims body in a report entitled Unfinished Business: An Agenda for All Canadians in the 1990's. A joint Canada-First Nations working group looked at creating a permanent, legislative entity with tribunal-like powers.

1991 (January, post-Oka): the Indian Specific Claims Commission (ISCC) was created under the federal Inquiries Act primarily as an alternative to the courts for First Nations whose specific claims have been rejected by Canada. In such cases, a First Nation can refer its claim to the Commission to conduct an independent review of the government's decision. If requested, the ISCC can also provide mediation and facilitation services to help Canada and First Nations reach an agreement. The Commission was only intended as an interim measure, until a permanent independent body with adjudicative powers could be created. In its annual reports to Parliament over the past ten years, the ISCC repeated its recommendation that such a permanent body should be created.

1992-1993:  Subsequent attempts on the part of the Government of Canada and the Assembly of First Nations (AFN) to agree upon the form and content of claims reform did not meet with success in the end. In 1992-1993, a Joint Working Group, composed of representatives from both Canada and the AFN, failed to achieve agreement or finalize a report.

1996: the Royal Commission on Aboriginal Peoples recommended an independent lands and treaties tribunal to replace the ISCC. This followed extensive consultations with First Nation people across the country.

1998: Two years later, in a report entitled Aboriginal Rights in Canada: An Agenda for Action, the Canadian Bar Association recommended "the creation of a legislative- based Specific Claims Tribunal with a clearly defined mandate to adjudicate the resolution of specific claims."

1998: the Joint First Nations-Canada Task Force on Specific Claims Policy Reform recommended an independent commission to assess claims as well as a tribunal to assist in resolving disputes.

2003 (Nov.): the Specific Claims Resolution Act received Royal Assent. The Act would have allowed binding decisions on the validity of claims and compensation amounts valued up to $10-million, but was rejected by First Nations and never implemented. One of First Nations' key concerns with the legislation was the financial limit on tribunal decisions.

2007: The Standing Senate Committee on Aboriginal Peoples recently conducted a thorough review of the specific claims process. The recommendations in its report, entitled Negotiation or Confrontation: It's Canada's Choice, were accepted by the Senate in February 2007. The Senate report pinpointed the lack of independent adjudication and the slow pace of the current process as the key problems. It recommended that the government create an independent claims body with decision making powers, dedicate $250 million in funding per year to paying settlements and implement other improvements, such as putting more resources into the negotiation process.

In June 2007, the Government of Canada announces the development of a new approach to claims.



            [1]  In June 1969, the Minister of Indian Affairs and Northern Development, Jean Chrétien, released a formal Statement of theGovernment of Canada on Indian Policy (the White Paper) that addressed the subject of aboriginal claims to land.

The Indian Claims Commission, December 1969, resulted from the following statement included in the White Paper: "the Government will appoint a Commissioner to consult with the Indians and to study and recommend acceptable procedures for the adjudication of claims."

The Indian Claims Commission was established under Order in Council, P.C. 2405, 19 December 1969 under Part I of the Inquiries Act (R.S.C., 1952, c.154) and on the recommendation of the Prime Minister. The Commission was mandated to consult with authorized representatives of the Indians and, (a) to receive and study the grievances arising in respect of: (i) the performance of the terms of treaties and agreements formally entered into by representatives of the Indians and the Crown; and (ii) the administration of moneys and lands pursuant to schemes established by legislation for the benefit of the Indians; (b) to recommend measures to be taken by the Government of Canada to provide for the adjudication of the claims received that he considers can be demonstrated to require special action in relation to any group or groups of Indians; and (c) to advise as to categories of claims that, in this judgement, ought to be referred to the courts or to any special quasi-judicial or administrative bodies that he recommends as being desirable for adjudication of specific awards.

According to Dr. Barber, it was clear that the Indians Claims Commission was unpopular from the start because of the White Paper itself: "When I was appointed to the position in late 1969, Indian opposition to the White Paper was powerful and growing. The office of commissioner was rejected by Indian leaders because it was seen as a creature of the White Paper and because the Commission's terms of reference appeared to preclude any examination of the question of aboriginal rights."

The Indian Claims Commission, therefore, was limited to an exploratory and advisory role rather than one with explicit powers of adjudication. In March 1977, at the time when the Indian Claims Commission was superceded by the Canadian Indian Rights Commission.

 

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Development interventions and indigenous peoples: the power of destabilization

Céline Germond-Duret
Graduate Institute of International Studies, Geneva

ABSTRACT

Since the end of the 1940s, North-South relations took place in part within the framework of the aid regime. In this context, many development projects have been implemented by bilateral or multilateral actors, and notably by the World Bank, which is a leading institution in this field.

The specialized literature as well as donors have much looked into the effects of these projects in terms of efficiency. However, the negative externalities of this kind of foreign interventions have until recently given rise to far less debate within the academic literature, despite the alarm signals formulated by activists who are aware and witness that development interventions can sometimes do more harm than good.

Among criticisms of this type, some claim that development projects can be disastrous for the environment or can be socially unfair, but also that they can have negative impacts on indigenous peoples living where the project is implemented. Indeed, development projects can hurt these populations by modifying their environment, by resettling them, or by encouraging them to adopt a different lifestyle. In this respect, it is interesting to note that among the complaints that have been lodged with the World Bank Inspection Panel, near half of them mention problems affecting indigenous peoples.

Through our analysis of some of these cases, our paper shows that the North possesses a real power of destabilization which operates through development interventions and can particularly affect indigenous peoples. The asymmetry of power in the process of decision making between the “interveners” and the indigenous peoples can result in the implementation of projects affecting these populations in an unfortunate way. Being confronted to development projects that disrupt their habits and are not in accordance with their values, indigenous peoples can lose their marks, and their identity can be threatened, leading to the destabilization of their social organization and creating tensions between those strongly attached to their traditional livelihood and those seduced by a “modern” model of development.

Introduction

At the end of the 1940s, the world has been divided between developed and under-developed countries. The origin of the distinction between these two categories and the official and public apparition of the concept of “under-development” is indeed attributed to President Truman’s discourse on the state of the Union in 1949 (2).

Some people compare this discourse with a religious sermon, where salvation is promised to the ones who are handed over to sin and death if they do not conform to the requirements of the faith (Rist, 2001: 21), others simply condemn this distinction between the developed and the under-developed world: “underdevelopment began, then, on January 20, 1949. On that day, two billion people became underdeveloped. […] They ceased being what they were […] and were transmogrified into an inverted mirror of others’ reality” (Esteva, 1992: 7). However, these ideas did not appear suddenly that day, they were already in the air; in this way, according to Escobar, when in 1948 the World Bank (hereafter the WB) rated countries as poor if their per capita income was below 100$, then two thirds of the world population became poor: “that the essential trait of the Third World was its poverty and that the solution was economic growth and development became self-evident, necessary, and universal truths” (Escobar, 1995: 24). It is in this context that the development aid regime was born, leading to a large amount of aid projects and programmes until today.

Even if development assistance benefits from a large amount of literature, studies on its consequences generally deal with efficiency and not so much with unexpected and harmful effects. However, negative externalities of development assistance are a reality, as we can see for example from studies on the impact of structural adjustment programs (Cornia et al, 1987; Mosley, 1992; Reed, 1996). We also find studies showing that development interventions’ impacts can take part in a “conflictual dynamic”, influencing the emergence or intensification of conflicts within a given society, like in the case of the Rwandan genocide (Andersen, 2000; Storey, 1999; Uvin, 1999).

Esman looked more generally at the link between development assistance and the emergence and prevention of ethnic conflicts (Esman, 1997). According to him, the reticence of development aid agencies to consider the social impact of their interventions is responsible for the failure of many development projects and would even have inflicted suffering on weak and vulnerable populations. Development aid can produce changes that can increase the hostility between ethnic communities; this is the case if the aid benefices are, or are perceived as, systematically in favour of a particular community. In this case, aid can exacerbate an ethnic conflict or precipitate violence. Then, for Esman, ethnic factors need to be taken into consideration to decrease the probability of emergence of an internal conflict.

Muscat devoted a book to the possible impacts of aid on conflicts, through various case studies (Muscat, 2002). He presents several cases of conflicts where aid has either not done anything to prevent the situation of violence, or is responsible for the violence. Among other examples, he notes the case of Pakistan where, during the sixties, the World Bank and other agencies have concentrated the aid in the west of the country, where the perspectives of development appeared better; this contributed to a growing resentment in the east, which was perceived as lacking economic potential.

It follows that there is often talk of impacts not on a society as a whole, but on a specific group of population; hence, we can imagine that the type of group concerned has an importance, and that effects could be different depending on the type of group. In our study, the precise group of population on which we work are indigenous peoples, and the specific problem that can occur is a destabilization of the community.

1. Indigenous peoples: indicating a transformative power

The number of people belonging to an indigenous group is estimated at 300 million, distributed in about 70 countries. We chose to work on this category of peoples because of their particularities; indeed, it is interesting to work on these groups, as a strong indication of a transformative power of development interventions on groups who are, almost by definition, not integrated into the dominant development model. 

Our research could lead to a broader reflection on the way development is implemented and imposed. Indeed, indigenous peoples do not follow the classical development model and can undergo an imposition of a model that is not adapted to their reality.  By the way, the World Bank has been subject to criticisms related to the harmful effects its activities have on indigenous peoples, despite the measures, policies and procedures it has adopted (3).

The legal literature has much looked into the definition of indigenous peoples, but we will not tackle this issue (4). However, we are going to mention what we regard as the main characteristics of indigenous peoples, so as to be clear about the groups on which we work. Of course, there are some variations between each group, and labelling them under a same denomination could let one imagine a kind of homogeneity, and deny their diversity; however, some common traits exist. These particular characteristics are their auto-distinction in relation to non-indigenous groups, their relationship with nature in general and their attachment to ancestral lands in particular, their relation to development, and finally an internal mode of organization that is characteristic of them.

The distinction from “others” is a recurrent element. Not only are indigenous peoples the original inhabitant of a territory (who opposed and resisted to foreign inroads and have tried to protect their values and to keep their own identity), they also distinguish themselves from the others and assert themselves as indigenous peoples. This element is regularly mentioned by indigenous themselves, and it is also used in international legal documents. This is what is called the “subjective” element of identity. They also have a holistic vision of nature and share a special relationship with it, distinct to the anthropocentric vision of non-indigenous societies in general and industrial ones in particular. Their cosmogony implies a feeling of belonging to the natural world. Every attack against the environment is then felt as an attack against their identity, their spirituality and their way of life (5). “The value of land and environment in indigenous culture is based on a holistic vision of their territory where the entire animal and vegetal world acquires particular meaning, a value that is fundamental for the reproduction of the life of the rest” (Nesti, 1999: 19). However, this does not mean that indigenous peoples protect the environment better, but that environment assumes an essential character and that indigenous peoples share a special relation with it. Another important aspect, which is linked to the former, is the attachment to their lands, the lands of their ancestors. Some consider that “the history of indigenous peoples is, to a large extent, the chronicle of their unsuccessful attempts to defend their land against invaders” (Nesti, 1999: 15), the lack of property rights making it very difficult to defend lands coveted by foreigners. The attachment to the lands constitutes a difference between indigenous peoples and other minorities who do not necessarily claim ancestral rights on a specific land. Another essential feature of indigenous peoples is their relation to development. This aspect is of course difficult to generalize, but we can say that the economic system of indigenous peoples is distinguishable from the dominant market economy model and that it is often mainly an economy of subsistence (6). This remark is obviously valid only for populations who stayed on their lands and not for those who left their ancestors’ territories to find jobs in towns for example (7). Sometimes development projects implemented near or on a territory where indigenous peoples live require handworkers and some members of the community can be attracted by this opportunity; indigenous peoples are in fact more and more confronted with the « modern » economy, and some individuals are torn between this economy and the one traditionally practiced. Schulte-Tenckhoff considers that the economic and market globalization and development constitute the biggest threat for the survival of some indigenous peoples. But she also warns against the tendency to isolate them in a kind of “state of nature” (Schulte-Tenckhoff, 1997) that wants to maintain them in a fixed way of life, so as to preserve their ecosystem for example (Schulte-Tenckhoff & Horner, 1995), while they do not necessarily conceive themselves in a static vision: “many of you romanticise us, and talk as if “development” is something for others, as if we should be « tribals » forever and live in a timeless world apart. We don’t want to live apart, we want to be part of a true mainstream of equality and liberty, one we will fight for along with all others. [] Let us develop our own wealth, let us have the profits gained out of sharing with the world our knowledge of medicines and herbs, and we can have all the development we need, under our own control” (Omvedt, 2000). And lastly, concerning the decision making process, even if the internal organization differs from one community to the other, indigenous peoples respect a different authority than the national political authority.

Generally speaking, Schulte-Tenckhoff summarizes the challenges faced by indigenous peoples as such: the loss of their traditional lands necessary for their subsistence and the threat hanging over the preservation of their collective identities faced with the modern society and its development model (Schulte-Tenckhoff, 1997: 41). In his report on indigenous peoples and conflict resolution, Miguel Alfonso Martínez considers six “basic root causes of actual or potential conflict”, among which are development projects undertaken by non-indigenous entities and individuals affecting traditional indigenous lands (Martinez, 2004).

Our research precisely aims at showing the impact of development projects on the identity of indigenous peoples and how they can destabilize them.

2. Indigenous peoples and destabilization

We understand a destabilization within indigenous peoples mainly as the decrease of the social cohesion, which can even lead to a social conflict. The central element is group identity, that is to say the common identity that creates and maintains cohesion. We think that development projects affecting indigenous peoples will affect their group identity through a certain number of vectors, described below, which will challenge their values and harm their cohesion.

According to Gurr, in a different context, “ethnopolitical conflicts are fought not just about resources or power, but about protecting group status, culture, and identity. Identity and beliefs are non-negotiable” (Gurr, 1994: 365). Going deeper in this matter, Pearson considers that the identity dimension should not be necessarily dissociated from the instrumental dimension, and then that “reassuring parties about their security and access to key resources or ancestral homelands can address many concerns related to identity” (Pearson, 2001: 278). In fact, we recognize ourselves in the poststructural approach of identity that combines some elements coming from various socio-psychological theories of identity and includes considerations of interests in addition to considerations of identity: “like social identity theory, poststructural theory presumes that identities are produced through social comparisons, and that group value is assigned through such comparisons. Like realistic conflict theory, it incorporates the belief that resources are usually scarce and that people are motivated by “rational” desires to promote their interests. And like the literature on social representations, it focuses on the ways that beliefs about identity groups are constructed through discourse and symbols” (Kreidie & Monroe, 2002: 14). We adhere to this approach that applies perfectly to our case. Firstly, we consider that in their great majority indigenous peoples are driven by the pursuit of their main interest, which is the maintenance of their territory threatened by the incursion of non-indigenous, as this has regularly been the case. Secondly, the social identity theory also applies, as the definition of the indigenous identity requires the distinction from others and induces a social comparison which, without implying the affirmation of a superiority on others, engenders, however, the comparison on some aspects (such as the management of the environment and the relation to the nature or the economic organization). Concerning the system of beliefs on which the identity is based, each identity group possesses its own symbols and cosmogony that establish the place and the role of the group and define their values, that is to say “an enduring belief that a specific mode of conduct or end-state of existence is personally or socially preferable to an opposite or converse mode of conduct or end-state of existence” (Rokeach, 1073: 5).

We propose that a development intervention can destabilize indigenous peoples if it represents a threat to their groups’ interests or their common identity, these two aspects being linked, and then if it is in opposition to their common values, these values being part of the social identity (Bettencourt & Hume, 1999: 119). We are thus located in a logic of group, as we are not interested in the individual interests and identities within a group, but in this group itself, composed by individuals who share common values, interests and identities.

3. Development interventions and destabilization of indigenous peoples: the vectors

Development interventions impacting on indigenous peoples can destabilize them through some previous effects that modify social relations, and that we classified in four categories. The four intermediate effects are not always independent from each other, as some of them can also engender the others. We should specify that these intermediate effects are not the exhaustive effects of development interventions; they simply are the vectors leading to a destabilization of an indigenous community, but other effects are of course possible, although they are not mentioned here (such as health problem or, of course, more “positive” effects).

 


Development interventions impacting indigenous eoples

 

1. Displacement of population       

2. Modification of economic activities and organization

3. Questioning of the authority

4. Renunciation of manners and customs

 

DESTABILIZATION:

Hostility/Social conflict within the indigenous population or between indigenous and other components of the society (impact on the social organization and social relations) 

 

 

Transformation of
 the way of living
 and common values => challenged
threats to the group identity

   

For theories dealing with group-identity conflicts, the conflict is based on a divide between two identities (8). In our case, two situations can occur: firstly, the indigenous identity can feel threatened by the incursion of non-indigenous elements. Secondly, some indigenous want to maintain a lifestyle conformable to their values and expect the other members of the group to do so, so as to maintain cohesion within the group, whereas for others this aspect seems of lesser importance, then challenging the basic identity. Then, the common identity can be threatened or feel threatened by the incursion of foreign elements and by its own dislocation as well.

Displacement of population

Every year since 1990, about 10 million people are displaced involuntarily because of development projects (or some 200 million people globally during that period) (9). These comprise projects of water supply including dams, reservoirs, and irrigation projects (10), projects of urban infrastructure, transportation projects, projects of energy including mining activities, oil exploration and extraction and the building of pipelines, projects of agriculture expansion, parks and forest reserves, and population redistribution schemes (11).

Impoverishment and disempowerment have been the rule rather than the exception for resettled persons and, for a large majority of indigenous peoples displaced because of large development projects, this was very negative in cultural, economic and health terms, implying notably unemployment, hunger, and cultural disintegration (Bartolomé, 2000). Cernea, from the World Bank, summarises what a displacement of population provoked by a development project implies as such: “Forced population displacement is always crisis-prone, even when necessary as part of broad and beneficial development programs. It is a profound socio-economic and cultural disruption for those affected. Dislocation breaks up living patterns and social continuity. It dismantles existing modes of production, disrupts social networks, causes the impoverishment of many of those uprooted, threatens their cultural identity, and increases the risks of epidemics and health problems” (Cernea, 1995). He notes eight risks linked to displacement of populations, which are the lack of land, the lack of work, the lack of housing, the marginalisation, the food insecurity, an increase of morbidity and mortality, the loss of access to common property and social disintegration. These effects are close to the intermediate effects we mentioned; the privation of land and the loss of access to common property can be included in the modification of economic activities category, and possibly in the modifications of manners and customs category. However, we consider that social disintegration should not be placed on the same level, but that this is a result of the other effects. Cernea himself elsewhere notes that social disintegration can result from the dismantling of production systems, from the disorganization of communities and from the renunciation of symbolic markers (12).

Displacement of population is then a real effect of development projects and thus has its full place within the four intermediate effects. Concerning the way it can lead to a destabilization, or even to conflicts, there are several possibilities: for example the community can be divided geographically and physically in several relocation places; the relocation can also harm the way of living of the population and its organisation. The expression “development cleansing” has even been employed in reference to persons displaced because of the building of dams, “[an] ethnic cleansing in disguise, as the peoples dislocated so often turn out to be from minority ethnic and racial communities” (Balakrishnan, 2001). It should be added that the place is strongly linked to the identity of individuals and groups, “questions of ‘who we are’ [being] often intimately related to questions of ‘where we are’” (Dixon & Durrheim, 2000). Then, displacement and relocation can be extremely unsettling, especially for population whose way of living is inseparable from the surrounding environment. 

Modification of economic activities and organization

            Every development intervention aims at change, be it the integration of a traditional economy to the market, the facilitation of women access to education or the building of a trunk road. So it could seem quite obvious that development interventions can lead to modifications of economic activities and organization. But the problem is that some unexpected effects can occur on the fringe of the development project. A development intervention can affect the economic life of indigenous peoples in various ways, directly or indirectly, through the expropriation or relocation, leading for example to the loss or the diminution of lands suitable for cultivation (compensated or not), by affecting the natural resources essential to their survival (fishing, hunting, etc.), and also through the employment of members of the community in the project (thus diverting them from their traditional activities).

            If it is not possible to maintain it anymore, the loss of a common traditional activity can harm the cohesion of the group. The mode of production essentially based on a subsistence economy being one of the characteristic of the identity of the indigenous group, every hitch to this activity hurts their identity, and is a further step towards the dislocation of the relations within the group. This is the case, for example, if the community is divided between those who accept to work in the development project and those who refuse, judging this activity not conformable to their customs and values, and then denying the belonging to the group to those having moved away from their traditional way of living. The introduction of cash economy can be disturbing as well.

Questioning of the authority

            We think that development interventions can constitute a threat to the authority and to the decision-making system of the group in two ways. Firstly, the indigenous authority can be deligitimated if it gives the impression that it does not face the problems or the threat of external incursion. Secondly, if the position taken by the authority is not accepted by all, this can lead to the questioning of its legitimacy. When opinions diverge on issues related to identity, the stake appears as more serious than in other situations. And values such as respect of the elders can be affected if they do not have an unanimous opinion on the situation or if their opinion diverges from those of young people. Additionally, hostility can also be felt against the political authority of the state if it is considered as willing to harm the indigenous population, or at least, as doing nothing to protect it.

Renunciation of manners and customs

            This point stems in part from the previous ones. The development intervention can indeed disrupt the system of values and hurt the customs and beliefs by having repercussions on the traditional way of life. We should also evoke the spiritual aspect that can be related to a specific territory modified by development projects, when indigenous peoples are dismissed from ancestral territories that are not exploited in a utilitarian way but that have a strong importance for the spiritual life.

Thus, it appears that a power of destabilization can operate through development interventions, which can particularly affect indigenous peoples. The asymmetry of power in the process of decision making between the “interveners” and the indigenous peoples can result in the implementation of projects that affect these populations in an unfortunate way. We think that this asymmetry of power is strongly related to the issue of information sharing and diffusion, as indigenous peoples are often let apart in the decision making process and are not given the information that could enable them to control what is done in their territory and to make their rights fully respected, and that their interests, their will, their needs and their values are simply not sufficiently taken into consideration.

World Bank development projects and their impact on indigenous peoples

The World Bank is the biggest multilateral donor. It is important in terms of funds disbursed, staff and experts but also by its influence on the development policies’ elaboration. During the last ten years, it financed more than 3000 projects in more than a hundred countries on a variety of domains. Its Inspection Panel (hereafter IP or Panel) was established in 1993, mainly to respond to growing criticisms against the Bank. Its purpose is to provide “people directly and adversely affected by a Bank-financed project with an independent forum through which they can request the Bank to act in accordance with its own policies and procedures” (World Bank, 1994).

Since its creation, the Panel received 42 complaints. Nearly half of them concern indigenous peoples (in other words, complainants claimed that the procedure related to indigenous peoples has been violated, meaning that indigenous populations have been harmed by the project).

When some populations formulate a request of inspection, first the Inspection Panel decides whether the request is within its mandate. If this is the case, it sends the request to Bank Management, which submits its response to the IP. Then, the IP makes a preliminary review of the request, assesses the Management’s response and recommends to the Board whether an investigation should be conducted. The IP sends its investigation report to the Board when finished, and then Management has to submit its recommendations to the Board as to how to respond to the IP’s findings. The IP mandate covers the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA) but neither the International Finance Corporation (IFC) nor the Multilateral Investment Guarantee Agency (MIGA).

Concerning our case studies, we made our selection as follows: on the 42 complaints received by the Panel since its creation, 18 claimed that indigenous populations have been harmed by the project (see table 1 in annex). We wanted a kind of diversity in the regions studied, as well as in the type of project implemented. So we chose one case in Latin America, one in India and one in Africa, while eliminating cases for which the accessibility to documents could have posed a problem. As to the type of project, we chose a large dam project, a mine project and a pipeline project. The reason of this choice was to show some similarities in the effects on indigenous peoples and in the way development interventions are conducted, whatever the project is and wherever it is implemented. We chose to work on the following cases: 1) the Financing of Hydroelectric Dams in the Bío Bío River, Chile, and its impact on the Pehuenche population; 2) the Coal Sector Environmental and Social Mitigation (CSESMP) and the Coal Sector Rehabilitation Projects (CSRP) in India, and their impact on Adivasis; and 3) the Petroleum Development and Pipeline Project and the Petroleum Environment Capacity Enhancement Project in Cameroon, and their impact on Bakola/Bagyeli pygmies.

Financing of Hydroelectric Dams in the Bío Bío River, Chile

The Pangue hydroelectric project consisted in the building of a hydroelectric dam on the Bío Bío River in Chile. The company Pangue S.A. which built and operated the dam was owned by ENDESA (97,5%) and the IFC (2,5%); the IFC also made a loan of US$ 170 million. Among other things, the opponents to this project argued that the functioning of this dam was conceived in conjunction with the building of another one, Ralco (despite the fact that IFC was not an investor in the latter), thus increasing the final impacts.

The Pangue dam was completed and its reservoir filled in 1996. It displaced 55 Pehuenche and flooded 500 hectares of land, including one of the most beautiful part of the Bío Bío canyon counting 112 water falls (Fletcher, 2001). Ralco (inaugurated in Fall 2004) is located 30 km up Pangue. It flooded 3500 hectares of land and engendered the displacement of more than 1000 people, more than a half being Pehuenche.

The Mapuche, to whom the Pehuenche belong, is the largest pre-Columbian ethnic group in Chili (about 800’000 persons). They share a homogenous culture: a common language, similar economic practices and institutions, close social relations (Astrain, 1996). Mapuche include sub-groups defined in geographical terms. Pehuenche, which signifies literally peoples (che) of the pine nut (pehuen, being the fruit of the Araucaria) live in the upper Bío Bío. There are about 10000 Pehuenche in Chile; about 5000 live in the upper Bío Bío, distributed among 7 communities on about 30000 hectares. They have a self-sufficient economy based on the sustainable use of resources existing on their lands (Aylwin, 2002). Generally speaking, there is a big gap between the social and economic situation of the Mapuche and the rest of the Chilean population.

The Mapuche society and religion are closely linked and integrated, despite some variations among regions and communities, depending on the strategies developed by the communities in response to foreign influences and pressures (integration or resistance). There is a continuous effort to both adapt the indigenous system to the external world and appropriate the external world and integrate it to their cultural and value system. This leads to some internal contradictions that could threaten the coherence of the group and weaken the community. This process could lead either to a new awareness of their cultural identity or to a dissolution (Astrain, 1996). And the disruption engendered by the building of the dams destabilized the internal cohesion even more.

            Concerning their impacts, generally speaking, resettlement implied the physical division of communities and families, a drastic change in the way of life and the cultural and economic activities, sometimes without a good compensation.

Families have been divided through relocation, and this resulted in the disruption of the communities and of their lifestyle (Anguita Mariqueo, 2004). Displacement and resettlement implied a dramatic change in their traditional livelihood and way of life, based notably on a system of migration between winter and summer places, which is of important value for the social organization; indeed, during most of the year, Pehuenche live in invernadas areas  near the Bío Bío river, and in the summer, they migrate to the veranadas located in altitude, notably to collect the pehuen in big quantity for the whole year, which is an essential activity in the Pehuenche life. In fact, not only is the pehuen a source of nourishment, it also feeds animals and is used in the preparation of a special drink for religious ceremonies (Nesti, 1999: 45). This organization is of course challenged in case of an imposed sedentary life (Nesti, 2002). Leaving the burial places is also a big shock. Aylwin even talked of an ethnocidium in the case of the Pangue project and the relocation, which implied the fragmentation of communities and the erosion of the Pehuenche culture (Aylwin, 2002). “The threat of displacement […] is only the last in a long line of abuses which the people have suffered at the hands of foreign colonists” (Fletcher, 2001).

            In addition to resettlement issues, families were sometimes evicted without any assistance. This is for example the case of a family whose property was flooded and who had to struggle to be later compensated and to obtain 30 hectares and a house. Generally speaking, the loss of ancestral lands and the impact on the culture is impossible to compensate in a material way.

Two types of social relations have been affected; firstly, relations within the community have been in some way disrupted, and secondly relations between Pehuenche and the state authority have also deteriorated.

Firstly, there were some conflicting opinions concerning the building of the dams within Pehuenche themselves; for some, resettlement could help to preserve their culture and allow a material and intellectual development (Fletcher, 2001). By the way, on the 91 families threatened by the displacement perspective because of the building of the Ralco dam, only 8 of them (that is to say about 80 persons) resisted and refused until the very end to sign any contract with ENDESA and to accept to be displaced (Fletcher, 2001). Some Pehuenche even filed suit in a Chilean court, complaining that those who were opposed to the resettlement option threatened their own benefits. The conception of their own group identity, and of what it means to be a Pehuenche, is at the centre of these reactions. For the families resisting displacement, the Pehuenche identity is tied to the ancestral lands and to their traditional activities; those willing to abandon their lands are then considered as “betraying their indigenous heritage” (Fletcher, 2001: 21). On the other hand, some Pehuenche think that their identity is not linked to their current activity and that they will remain Pehuenche whatever they do, and they do not consider that displacement will engender a break from tradition and from the common values uniting the group. These conflicting opinions are also related to the different evaluation of their current livelihood. For those who considered themselves as poor, resettlement represents progress and they accepted to resettle because of the lack of social services in their region. Others consider, on the contrary, that their way of life is not a synonym for poverty, but for freedom. To summarize, “[Pehuenche] are simply contesting an outside influence which they never regarded as legitimate. Those favouring resettlement, on the other hand, might be seen in a sense as “resisting” their “traditional” cultural framework” (Fletcher, 2001). Furthermore, the creation of competing organisations for the defence of the Pehuenche caused some tensions too (Aylwin, 2002:14).

Secondly, relations between Pehuenche and state authorities have also worsened. Indeed, since the 1990s, various protests against the Pangue dam, and later against the Ralco dam, have been organized, some of them quite violent. In a context where Mapuche in general are not very well considered and are very active in the fight for their rights, this constituted another argument for mobilization, which was severely repressed. In March 2002, the police responded violently to massive protests against Ralco and 55 persons were arrested, most of them Pehuenche, and charged in military courts. And the Chilean anti-terrorist law has been invoked in November 2002. This means that some attempts to defend indigenous rights as well as demonstrations can now be considered as terrorist activities.

Generally speaking, it appears that the Pehuenche have not been properly involved in the decisions concerning the building of the dams that are affecting their lives, and that they have not been given the power to influence this process. On the contrary, this project has been characterized by a striking lack of transparency and a lack of information sharing.

In fact, the World Bank Inspection Panel did not take the complaint into consideration because the project was implemented by the IFC, which is not subject to the jurisdiction of the IP. But in July 2002 the Compliance Advisor Ombudsman (CAO) of the IFC received in its turn a complaint relative to that project. The CAO was created in 1998 for the IFC and the MIGA to provide a mechanism for people affected by the projects they finance, and its creation is in part due to that very project. Indeed, after the rejection by the IP, the World Bank President asked Dr Hair, President emeritus of the National Wildlife Federation, to conduct an investigation on this project; but once Dr Hair submitted his report, confirming policies violations and being quite critical of ENDESA, only a censored version of it was released. That censorship led to some frustration and emphasized the need for an accountability mechanism in financial institutions. The IFC and the MIGA answered by creating the CAO. But according to the Center for International Environmental Law, the CAO, “which is an advisory and informal problem-solving mechanism, does not replace the need for an effective inspection panel function” (<www.ciel.org>). It should be added that a few years before, T. Downing had been appointed by the IFC to conduct an evaluation of the Pangue dam because of growing criticisms against that project. He was asked to evaluate the efficacy of the Pehuen Foundation, created by IFC and ENDESA to organize the resettlement. He concluded that the rights of indigenous peoples were not taken into consideration in the resettlement plan, that they were not compensated adequately, and that the Foundation seemed in fact to be used to encourage Pehuenche to abandon their lands in anticipation of the building the Ralco dam. The Downing report submitted in May 1996 was censored, as ENDESA did not approve of its findings and refused its diffusion among the Pehuenche and the public in general (Johnston and Garcia-Downing, 2004). These two examples of censorship are just a sample of what has been undertaken to prevent Pehuenche from obtaining information and having the power to fight and to decide independently on their future. In 2003, the CAO produced its report, and what is striking is the recurrence of elements related to the lack of transparency and participation, which is a quasi-leitmotiv. It also notes that some concerns expressed by the complainants had already been addressed to the IFC many years before without giving rise to the necessary actions. That led the CAO to wonder “what then explains the inaction that frustrates and angers the communities affected?” (CAO, 2003: 28).

Coal Sector Environmental and Social Mitigation (CSESMP) and Coal Sector Rehabilitation Projects (CSRP) in India

The Indian case concerns the coal mine located at Parej East, in the State of Jharkhand. This mine is operated by Central Coalfields Ltd (CCL), which is a subsidiary of Coal India Ltd. This mine is an opencast coalfield, which is part of the 25 mines included in the two World Bank financed projects that are the CSESMP and the CSRP. The credits for these projects were approved respectively in 1996 and 1997. Our case deals mainly with the first project. Its objective was to “assist India in making coal production more environmentally and socially sustainable” (<www.worldbank.org>) and comprised two components of interest for Parej East, one of them being an investment component for the implementation of Environmental Action Plans, Rehabilitation Action Plans and Indigenous Development Plans.

The project has affected Adivasis, meaning “original inhabitants” in Sanskrit, who constitute more than 67 million of the Indian’s population; they include various sub-groups, two of them being particularly concerned by coal mining activities: “The region around Parej East is inhabited by a large number of tribal peoples. The bulk of them are from the Santhal tribe, which is the largest tribe in eastern India. They are all settled cultivators and live in permanent villages. They have their own religion, language, and polity, which is characterized by a democratic tradition, with a hereditary village headman. [...] The other tribes, known as Birhor, are hunters and food gatherers and are very small in number”(Inspection Panel, 2002: §307). Adivasis are notably characterised by their strong bond to nature and to their territories (“the territory [being] an extension of the Adivasis’ collective consciousness with a cultural, political and social significance” (Minority Rights Group, 1998:4)), and by a strong attachment to the community, a self-sufficient economy outside the market economy and not based on money, and the rejection of the caste system, favouring an egalitarian system; in a general manner, “Adivasis now hold a subordinate socio-economic position in virtually every walk of Indian life” (Minority Rights Group, 1998: 3).

The outcome of these coal mining activities is far from satisfying in terms of the project-affected persons (PAPs) wellbeing. Indeed, rather than achieving environmental and social sustainability, the Parej East mine induced severe negative externalities for the affected peoples, mainly in terms of compensation for land and home loss, relocation, income and livelihood.

The exploitation of the mine has implied the displacement of populations, many of whom have not been compensated for the loss of their lands, “with the results that many of them have suffered and continue to suffer harm” (Inspection Panel, 2002: §14). Moreover, PAPs sometimes had to fight to obtain compensation and to go through a judicial procedure, “especially since not all PAPs can afford the direct costs of the appeal process and, even if they could, they would end up losing unless the costs of the appeal were added to their award” (Inspection Panel, 2002: §16). In both cases of compensation for land and for house, the Panel notes that these processes were “open to abuse” (Inspection Panel, 2002: §18). And when lands are needed for mines, when rights on these lands are thus denied to people traditionally working on them, and when compensation is not given, this engenders “anger and frustration” and people feel “cheated” (Lahiri). At the time the IP made its investigation, “about 150 ha out of a total of about 160 ha claimed by tribals have not yet been settled” (Inspection Panel, 2002: §39). Anyhow, even when compensation is planned, it can also create problems, depending on how it is done. In this case, compensation in cash has been proposed and this solution can be very disconcerting for people who are not used to cash economy:

It is “difficult, if not impossible, to reconcile the Bank’s aim of development with a one time cash grant for acquisition of home or land. Presenting a poor oustee, whose previous source of survival included a small patch of land, with a check may be a legal way of getting them to move on, but it should not be confused with development”(Inspection Panel, 2002: §20).

About 90% of India’s coal mines are located in Adivasi lands and between 1951 and 1990, some 1.4 million Adivasis have been displaced because of mines (Minority Rights Group, 1998: 8); and their way of life has been seriously affected by the Parej East coal mine. Indeed, when parts of the jungle are destroyed, not only medicinal herbs disappear, but also their way of life, their cultural heritage and their community identity; and when trees with a sacred meaning are destroyed, this directly hurts their cosmogony: thus, “what we call modernization is simply viewed from the perspective of indigenous peoples as an ideology that rationalizes their destruction” (Lahiri).

            The attachment to lands explains the reluctance of Adivasis to being displaced. And physical division implies in the long run the suppression of languages and culture, and, to some extent, the erosion of common values. For some, “the violation of [the right to their traditional territories and the natural resources] not only means the disruption of lifestyles and the destruction of communities, but [even] constitutes ethnocide” (Minority Rights Group, 1998: 23). And, in addition, concerning the conditions of relocation itself, it did not provide displaced persons with the wellbeing they could expect. When the Panel visited some of the barracks, it observed “that the conditions [were] pathetic [and that] they hardly fit for human habitation, especially families” (Inspection Panel, 2002: §24). Moreover, families had to move to one of the resettlement site without the assurance that potable water would be already available there (Inspection Panel, 2002: §26). And some other relocated people found schools with no teachers at their new living place (Inspection Panel, 2002: §28).

More generally, it appears that many PAPs in Parej East did not restore their living standard and incomes to their former levels, as “the income of at least 21% of [Project-affected person entitled to rehabilitation] have not been improved, still less, restored” (Inspection Panel, 2002: §48), engendering much suffering.

In this case too, it appears that local populations have not been consulted in a proper manner, as it is the case with a resettlement site that was imposed to them without their consent (Inspection Panel, 2002: §22); they were not consulted either in the preparation of the indigenous development plan (Inspection Panel, 2002: §82). When some consultations or information meetings have been held, the climate was often quite intimidating and oppressive. Furthermore, in the Public Information Centre, located “in the gated CCL mine Headquarters’ compound” (Inspection Panel, 2002: §408), people were allowed to consult documents only with the presence of staff from Coal India Ltd and could not make copies of them; and the language used in the documents related to the project was very technical, when the level of literacy of the affected people is low. So, it seems that local specificities and situation were not correctly taken into account and that consequently action plans were not realistic, leading to negative side effects on indigenous peoples. For example, it appears that the resettlement plan “did not reflect the actual situation in Parej East and was not location-specific” and that this “resulted in many problems” (Inspection Panel, 2002: §13). Concerning land rights as well, during the preparation, Bank Management did not really pay attention to “the process required to ensure compensation for tribals cultivating traditional land without title or documentation”, whereas it could not be unaware of this (Inspection Panel, 2002: §38). And it also appears that “each year, entire sections of the annual [Indigenous Peoples Development Plan] for Parej East are repeated verbatim, including the one indicating a community’s “felt needs.” Each year there appears to be a “one size fit all” plan for each of the 11 communities, regardless of specific needs” (Inspection Panel, 2002: §79). The community development strategy also appeared not to be “sensitive to the composition, structure and needs of the community” (Inspection Panel, 2002: §83).

The following statement by the Panel summarizes the spirit in which this project has been implemented:

“The PAPs in Parej East were being asked to make a huge adjustment in their lives. In the Panel’s view, it was unrealistic to assume that, in the space of five short years, people affected by the project in Parej East, many of them poor tribals lacking social mobility, education, or an entrepreneurial culture, could be uprooted from their communities, transferred to a new one, provided with training for self employment, and some level of monetary compensation, and then expected to improve, or at least restore, their former living standards, income earning capacity and production levels.” (Inspection Panel, 2002: §61).

Petroleum Development and Pipeline Project and the Petroleum Environment Capacity Enhancement Project, Cameroon

The Cameroonian complaint refers to two related projects: firstly the Petroleum Development and Pipeline Project (hereafter the pipeline project) and secondly the Petroleum Environment Capacity Enhancement Project (the CAPECE project). The main component of the pipeline project, approved by the World Bank in 2000, was the development of 300 oil wells in Chad and the construction of a 1070-kilometer pipeline from the oilfields to the Cameroon’s coast at Kribi, crossing the territory of Cameroon on about 890 kilometres (13). It strongly affected the Bakola/Bagyeli pygmy population.

There are about 3000 Bakola/Bagyeli in Cameroon, living in the South-Western part of the country. They are hunters and gatherers who live in the forests and depend on them for their livelihoods, and “the forest is their first classroom” (Ngoun, 1999). They are particularly vulnerable to the encroachment of the forest, having no legal land and tenure rights. The cultural identity of pygmies undergoes some modifications, borrowing elements from other cultures; the tendency to accumulate goods and to buy movables is more perceptible among Bakola/Bagyeli (Zognong, 2000). Bakola/Bagyeli pygmies share a special relationship with Bantu; the long-term relationship between these pygmies and Bantu is a relationship of subservience and dependency of the former on the latter (notably for starchy food, clothes and land). Bakola/Bagyeli are moreover often mistreated by their Bantu masters. They are also discriminated by the authorities and are particularly vulnerable due to their lack of instruction.

The pipeline engendered severe impacts on the pygmy population. As one of them explains, “the route crosses a zone in which we practice agriculture and hunting. And when construction work started, our crops and our medicinal plants were destroyed, without compensation. Game has equally disappeared” (Mangama Ngiong Pierre, pygmy, quoted by Nguiffo, 2002: 5). And the issue of compensation appeared as inadequate because of the little experience of cash that benefiting populations could have. In fact, many villages having received financial compensations wasted them in beer, in parties and in additional wives; other simply stopped cultivating, thinking that it was not necessary anymore because oil companies would help them (Murphy, 2000). And when compensation in kind was provided, it was often bad quality material or inappropriate:

“In several villages, the oil companies built latrines for the communities. But the latrines were the finest structures the villagers had ever seen, and they had locks. So, of course, the villagers used them to store their most precious belongings and went on relieving themselves in the bush as they had been doing quite happily for centuries”.(Murphy, 2000).

“A few bags of rice, a few kilos of fish, and a bit of salt distributed here and there in a sporadic manner do not really represent anything in the process of sustainable development which is a fundamental need of the Bagyeli community. On the contrary, the model of development simply renders them more dependent, rather than providing bases for sustainability; it is not occasional aid that is needed, but sustainable development” (Planet Survey and Centre for Environment and Development (CED), 2003).

Moreover, Bakola/Bagyeli are a nomadic people, hunting and gathering, and their type of land use “does not lend itself to traditional western concepts of property, and thus makes environmental loss particularly challenging to quantify” (Perkins, 2004).

We can also note some tensions between villages for territorial issues because of the prospect of compensation for the loss of land, as well as severe impacts on the Bakola/Bagyeli populations and the loss of some traditional practices, and a greater vulnerability because of the contact with foreigners (International Advisory Group (IAG), 2001: 19). The special relationship between Bakola/Bagyeli and Bantu seems as well not to have been taken into consideration. Indeed, Bakola/Bagyeli have complained that Bantu were taking advantage of the compensation system to claim their lands and obtain compensation instead of them. This deepened the feeling of inequality and the conflicts between these two groups.

However, some conflicting opinions can also be found within the pygmies themselves. Indeed, according to some, Bakola/Bagyeli do not want to change their way of life: “we were born in the forest, so we like living in the forest” (Mintououng, chief of a Bakola/Bagyeli village, quoted by Murphy, 2000). But others, who have adopted a new type of economic activities, share quite a different point of view: “Pygmies who still wander around, live on hunting and fruit gathering are those of the older generation. […] Today we are settled and agriculture is our main activity. […] Our farms may be small and disorderly but every day we are learning to improve on them and adopt modern technology. In addition to agriculture we operate a loan-thrift society to provide better utensils for our women” (Musa, 1997).

The situation can be summarized by saying that, because of the building of the pipeline, of the flow of strangers looking for jobs and of the requisition of lands, “the pygmies are today strangers in the forests where they were the first to live their lives” (Judith Atangana, member of a Cameroonian NGO, quoted by Tetchiada, 2005). A sister of the Congregation of the Small Sisters of Jesus, working among the Bagyeli since more than fifty years, expressed as such her preoccupations concerning the Bakola/Bagyeli: “I only fear that while moving ahead they may forget or lose their own rich cultures – their dance, music, etc.”  (Musa, 1997).

The building of the pipeline has enabled to oppose the two conceptions prevailing within pygmy community concerning what pygmies should do now, that is to say trying to maintain as much as possible the traditional heritage, or moving towards a modern life. Here also, the question of which values are the most important is at the centre of the problem.

If Bakola/Bagyeli had been more involved in the decisions concerning the pipeline and the compensation issues, perhaps this could have helped them to have a stronger power of decision and to be the actors of their own destiny, should it imply a change or not. But it appears that the information was not properly diffused among them and that they were not implicated in the project at all. To give an example, while conducting a survey in Bakola/Bagyeli villages in 2003, Planet Survey and Center for Environment and Development asked peoples about the pipeline, and they evasively answered “the pipeline is a pipe that will transport oil and we are going to work there in order to develop ourselves” (sic), which shows, according to the interviewers, that “information was not properly conveyed”. It should be also stated that Bakola/Bagyeli peoples are 98% illiterate, and despite this, flyers, brochures and posters were distributed during the information campaign (Planet Survey and Center for Environment and Development, 2003). In the latest International Advisory Group report (14), it is indicated that “a major point of progress [is] the beginning of a […] tripartite dialogue among the Cameroon Oil Transportation Company, the [Pipeline Steering and Monitoring Committee] and the NGOs” (IAG, 2005: §256); it means that one had to wait until the end of 2005 to see progress in this domain and to see exchange between these stakeholders.

Concluding Remarks

            The three development projects tackled in this paper strongly affected indigenous peoples and their way of life. These projects led, or are leading, to a destabilization of the community, through one or more of the vectors identified earlier (displacement of population, modification of economic activities and organization, questioning of the authority, renunciation of manners and customs). In the Chilean case, the building of the dams exacerbated conflicting opinions among the Pehuenche themselves as to which way should be followed; and it increased the tensions prevailing between Mapuche in general and state authorities, some activists being even considered as terrorists under the Chilean law. In the Indian case, the lifestyle of Adivasi has been disrupted and the communities divided. In these two cases, the word “ethnocide” has even been used. In the Cameroonian case, the building of the pipeline had negative impacts on pygmies’ activities, who were already very vulnerable. They were cheated by the Bantus on compensation issues, which accentuated the hostility against this group; and there also exist opposing views among Bakola/Bagyeli themselves concerning the future of their economic activities and the weight of the tradition.

The identity plays an important role here, as the threats to the indigenous interests (lands, economic activities, social and cultural organization, etc.) and to the shared values uniting all members of the group represent threats to the common identity. If common interests and values are not or cannot be preserved, then the common identity can hardly remain intact and unaffected.

Obviously, some members of indigenous communities perhaps wish to change their living conditions and to move away from the traditional model. But in an already fragile context, foreign actors should make sure not to destabilize the situation even more or provoke avoidable tensions.

It would also be legitimate to ask if the group cohesion could in some ways increase following a foreign intervention.  And this could indeed be the case. For example, if a group mobilizes against a project not conformable to their values and in contradiction with their interests, speak with one voice and try to resist together or, on the contrary, if they try to adapt together to the situation, this could reinforce their “we-feeling”. But this presupposes that they all agree on the advantages and disadvantages of the project and on what they could concede, that is to say on what the most important is for them. And this is not always the case, as we have seen above.

In some cases as well, mobilization of indigenous peoples could lead to some empowerment if they become an active force of opposition that will be taken into consideration in the long run. NGOs play an important role in this context, as they often help to organize the mobilization of the ones who are often voiceless. But here also, NGOs do not necessarily share the same conceptions of what should be preserved. For example, for some it is necessary to protect forests and their fauna and to restrict their access to prevent them from being too much exploited; for others, indigenous peoples should remain allowed to access forests and to hunt and gather as they have always done. When big environmental NGOs get involved in a project such as the building of a pipeline across forests, this does not necessarily imply the defence of indigenous peoples and their empowerment.  There is also a risk that indigenous peoples could sometimes be somehow manipulated, even if this is not always done intentionally. Indeed, sometimes NGOs defending indigenous peoples do not really speak on their behalf but rather according to their own ideals and conception of how indigenous peoples should live. In this context, we can hardly talk of a real empowerment. The Inspection Panel tries to palliate this problem by allowing NGOs to represent indigenous peoples and fill a complain only if they are local NGOs, so as to prevent big NGOs not directly concerned with the project to speak on behalf of peoples in the field (15).

            In our studies, problems of information sharing and transparency have been emphasized. Indeed, it appears that all the decision power is in the hands of the developers, who seem reluctant to share their knowledge on the projects, and that indigenous peoples can only undergo development projects implemented on the lands they use traditionally. Behind this behaviour, it seems that there is the underlying idea that indigenous peoples could sacrifice themselves for the well-being of the whole society and that impacts on these communities are marginal compared to the global benefits. However, the very existence of indigenous peoples is threatened, and the disappearance of a specific identity group should not be considered as marginal; not only does it pose an ethical question, but this also implies the disappearance of very rich cultural universes, including languages and other systems of knowledge.

Furthermore, these cases are a good indication of a development practice and give rise to a broader reflection on the way development is implemented. Wanting to improve the economic situation of a region derives from good intentions and cannot be criticized as such. But developers should be aware of the upheavals and of the various side effects they can provoke; they especially should not make cost/benefit analysis in purely economic terms and at purely national levels, but go deeper into the local specificities and identify the special particularities and needs of the sub-groups of the societies. This also implies a greater effort in terms of transparency and diffusion of information. The World Bank has various tools towards this aim through its policies and procedures on indigenous peoples. But it appears that, in practice, this is not sufficient, as they are not fully applied. Generally speaking, “respect for the principle of free, prior and informed consent in relation to major development projects is essential for the protection of indigenous peoples’ human rights” (Martinez, 2004: §50).

Agencies financing and implementing projects are then for a large part responsible of what happens to indigenous peoples because of the implementation of development projects. But the issue of empowerment is of course also related to the political rights of indigenous peoples and the political system of their country, and more particularly to the accessibility of information and the capacity to participate freely. For example, opinions of Bakola/Bagyeli pygmies who do not have any identity cards are not taken into consideration as those of “regular” citizens. In India, Adivasis are not recognized by the government as indigenous peoples and India did not sign any international agreement on this issue, arguing that all Indians are native inhabitants of India, and that Adivasis should not benefit from any specific rights.

            But whatever the political system is, power should anyway be more balanced between national interests or private companies’ interests on the one hand and indigenous interests on the other hand; otherwise, the struggle will remain highly disproportionate. Progress has clearly been made over the last forty years, and indigenous peoples are not always powerless, thanks to the emergence and the strengthening of global indigenous movements and their visibility at the international level. But, as Colchester (2005: 18) has recently recognized, “at the local level the vested interests that profit from the denial of indigenous rights are often still dominant and contesting change”. Then, the protection of indigenous peoples depends on their legal recognition and the recognition of land rights, not only at the international level but also at the national level through the adoption of laws and other binding agreements. Without progress in this direction, the situation of indigenous peoples will not improve.

Notes

1.   Contact information: duretc5@hei.unige.ch. Paper presented at the 2006 APSA Annual Meeting, Indigenous Studies Network, Philadelphia, 30 August – 03 September, 2006. I warmly thank Dr. Stephanie Di Alto and Prof. Stephen Sachs for their comments.

2. “We must embark on a bold new program for making the benefits of our scientific advances and industrial progress available for the improvement and growth of underdeveloped areas. More than half the people of the world are living in conditions approaching misery. Their food is inadequate. They are victims of disease. Their economic life is primitive and stagnant. Their poverty is a handicap and a threat both to them and to more prosperous areas. For the first time in history, humanity possesses the knowledge and skill to relieve the suffering of these people”, TRUMAN, Harry (1949), “President Truman's Inaugural Address”, January 20, 1949, in Public Papers of the Presidents of the United States: Harry S. Truman, US Government printing office, Washington, D.C., 1964.

3.   Notably the Revised Operational Policy and Bank Procedure on Indigenous Peoples (OP/BP 4.10, May 10, 2005); some other World Bank documents tackle this issue, such as WORLD BANK (1995), Participation and indigenous peoples, Note 08, June 1995; WORLD BANK (1999), Role of indigenous peoples in the next Millennium: World Bank policies and programmes, Statement delivered by Alfredo Sfeir-Younis, Special representative to the United Nations, United Nations, ECOSOC, Geneva, July 28, 1999. 

4.   Even if there is no formal definition of an indigenous people, the definition elaborated by the Cobo Study (directed by José R. Martínez Cobo) is regularly used and mentioned:  “Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continental existence as peoples, in accordance with their own cultural patterns”, COBO J. (1983), Study on the Problem of Discrimination Against Indigenous Populations: Final Report submitted by the Special Rapporteur, Mr. Jose Martinez Cobo, E/CN.4/Sub.2/1983/21/Add. 8.

5.   On the relation between indigenous people and the environment, see for example GASTEYER, Stephen P., BUTLER FLORA, Cornelia (2000), “Modernizing the savage: colonization and perceptions of landscape and lifescape”, Sociologia Ruralis, Vol.40, n°1, January 2000, pp.128-149.

6.   Some people talk about “life projects” (versus “development project”), based on the traditional knowledge “Life projects are embedded in local histories; they encompass visions of the world and the future that are distinct from those embodied by projects promoted by state and markets. Life projects diverge from development in their attention to the uniqueness of people’s experiences of place and self and their rejection of visions that claim to be universal. Thus, life projects are premised on densely and uniquely woven “threads” of landscapes, memories, expectations and desires”, BLASER, Mario (2004), “Life projects: indigenous peoples’ agency and development”, in BLASER, Mario, FEIT, Harvey A., McRAE, Glenn (eds), In the way of development: indigenous peoples, life projects and globalization, Zed/CRDI.

7.   “Impoverishment has led many of the world’s indigenous people to leave their communities, move to urban areas, and find temporary jobs as laborers. Although absent from home, many of these people maintain close links with their communities, hold rights to ancestral lands, and provide financial support for civil and cultural services”, DOWNING, Theodore, MOLES, Jerry (2002), “World Bank denies indigenous peoples’ right to prior informed consent”, Cultural survival quarterly, Issue 25.4, January 3, 2002.

8.   See for example HOROWITZ, D. (1985), Ethnic groups in conflict, University of California Press, Berkeley; SHERIF, M. (1966), Group conflict and cooperation: their social psychology, Routledge & Kegan, London.  

9.   For these data, see CERNEA, Michael (2000), “Risks, safeguards and reconstruction: a model for population displacement and resettlement”, in CERNEA, Michael, McDOWELL Christopher (eds) (2000), Risks and reconstruction: experiences of resettlers and refugees, World Bank, Washington DC.

10. Concerning the building of dams and resettlement issues, see MANINDER, Gill (1999), “Dams and resettlement as development: a case for building good practice”, Cultural survival quarterly, Issue 23-3, October 1999.

11. ROBINSON W. Courtland (2003), “Risks and rights: the causes, consequences, and challenges of development-induced displacement”, The Brookings Institutions-SAIS Project on Internal Displacement, p.11, quoting CERNEA, Michael (1999), “Why economic analysis is essential to resettlement: a sociologist’s view”, in CERNEA, Michael (ed) (1999), The economics of involuntary resettlement: questions and challenges, World Bank, Washington DC.

12. Ibid, pp.11-12.

13. The project concerns both Chad and Cameroon, but we focus here mainly on the Cameroonian case.

14. The International Advisory Group is an independent supervisory panel appointed in February 2001 by the World Bank and the governments of Chad and Cameroon.

15. This measure also prevents powerful NGOs to get involved too easily in World Bank projects.

Annex
Table 1: World Bank Inspection Panel : Complaints claiming the violation of the procedure related to indigenous peoples

  Country

Project

1

Brazil

Rondônia Natural Resources Management Project (1995)

2

Chile

Financing of Hydroelectric Dams in the Bío Bío River (1995)

3

Argentina/Paraguay

Yacyretá Hydroelectric Project (1996)

4

Brazil

Itaparica Resettlement and Irrigation Project (1997)

5

India

NTPC I Power Generation Project (1997)

6

India

Ecodevelopment Project (1998)

7

China

Western Poverty Reduction Project (1999)

8

Ecuador

Mining Development and Environmental Control Assistance Project (1999)

9

Chad

Petroleum Development and Pipeline Project, Management of the Petroleum Economy Project, and Petroleum Sector Management Capacity Building Project (2001)

10

India

Coal Sector Mitigation Project and Coal Sector Rehabilitation Project (2001)

11

Uganda

Third Power Project, Fourth Power Project, and Proposed Bujugali Hydropower Project (2001)

12

Cameroon

Petroleum Development and Pipeline Project, and Petroleum Environment Capacity Enhancement Project (2002)

13

Mexico

Indigenous and Community Biodiversity Project (COINBIO) (2004)

14

Colombia

Cartagena Water Supply, Sewerage and Environmental Project (2004)

15

Pakistan

National Drainage Program Project dates (2004)

16

Cambodia

Forest Concession Management and Control Pilot Project (2005)

17

Democratic Republic of Congo

Transitional Support for Economic Recovery Credit and Emergency Economic and Social Reunification Support Project (2005)

18

Honduras

Land Administration Project (2006)

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