Bijhu Nijeni 2011 - MAADI

and non-indigenous minorities groups alike,
these are rights of individuals, and not that
of a collectivity that pertains to the group as
a group. It therefore fails to address several
aspects of collective rights – e.g., with regard
to customary law and traditional justice
systems, customary land and territorial
rights, right to self-determination and selfgovernment
- which, conversely, are adequately
addressed in the UN Declaration on
the Rights of Indigenous Peoples (2007), and
to a lesser extent, in the ILO Conventions
No. 169 and 107. The Vienna Declaration
and Programme of Action adopted at the
World Conference on Human Rights in
Vienna in 1993 addresses the rights of ‘persons
belonging to minorities’ and the rights
of ‘indigenous people’ in separate paragraphs.
INDIGENOUS PEOPLES UNDER IN-
TERNATIONAL LAW
‘Indigenous Peoples’, and to a lesser extent,
‘indigenous people’, are established beyond
doubt as the preferred globally accepted terminology
– as invoked in several United Nations
instruments - to refer to groups that
are, or were, referred to as ‘aboriginal’,
‘tribal’, ‘hill tribes’, ‘scheduled tribe’, ‘ethnic
minorities’, etc.. The World Bank and
regional development banks too adopt the
same language. As in the case of minorities,
there is no formal definition of indigenous
peoples in any international human rights
instrument. The ILO Convention No. 107
(ratified by Bangladesh) provides some criteria
to identify ‘indigenous’ and ‘tribal’
populations. The former are those that are
(i) descended from historical population
groups that inhabited the country at the time
of conquest or colonization; and (ii) who live
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more in conformity with the social, economic
and cultural institutions of these historic
groups than with the ‘institutions of the nation
to which they belong’. The CHT indigenous
peoples fulfill both criteria on the nature
of the institutions to which they belong
and with regard to their presence in the concerned
territory at the time of conquest (1787
by the British East India Company) and colonization
(1860: annexation of CHT to Bengal
by the British Indian government).
Perhaps one the most widely accepted
‘working definitions’ of indigenous
peoples is the one provided by UN Special
Rapporteur Jose Martinez Cobo, who includes
the following criteria to identify indigenous
peoples: (i) continuity with pre-invasion
and pre-colonial societies; (ii) comprising
non-dominant sectors of society; and
(iii) determination to preserve, develop and
transmit to future generations their ancestral
territories and ethnic identity “in accordance
with their cultural patterns, social institutions
and legal systems”. If we summarize
the above criteria, the following may
emerge as the most crucial ones: (a) exclusion
from (or only marginal inclusion in) the
modern state-building and formal development
processes; (b) continuing non-dominance
(or marginalization) in major decisionmaking
processes; (c) presence of customary
law and traditional governance institutions;
(d) close attachment to an ancestral or
historical territory; and (e) geographic concentration
in those territories. All of these
criteria are applicable to the indigenous
groups in the CHT, and in the plains of
Bangladesh. Moreover, when it ratified the
ILO Convention No. 107 in June, 1972, the
Government of Bangladesh did not raise any
objections to the use of the word ‘indigenous’.