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also grateful for the collaboration of the Inter-American Institute of Human Rights, the members
of the Law and Society portal Alertanet and others who cooperated with him. The Special
Rapporteur has taken note of the recommendations addressed to him by the Permanent Forum on
Indigenous Issues at its fourth session and is taking them into account in his work.
I.
INDIGENOUS PEOPLES: IMPLEMENTATION OF LEGISLATION
AND CASE LAW ON PROTECTION AND PROMOTION OF
THEIR HUMAN RIGHTS
5.
During the first International Decade of the World’s Indigenous People (1994-2004)
many countries introduced legislative processes and constitutional reforms in recognition of
indigenous peoples and their rights, including recognition of languages, cultures and traditions,
the need for prior and informed consultation, regulation of access to natural resources and land
or, in some cases, recognition of autonomy and self-government. Despite those advances, there
is still an “implementation gap” between legislation and day-to-day reality; enforcement and
observance of the law are beset by myriad obstacles and problems. The present report discusses
some of them and the measures taken to overcome them, illustrating the situation with some
examples from various regions of the world.
6.
The Special Rapporteur trusts that the factors highlighted in his report may serve as a
guideline for Governments in their commitment to more effective implementation of existing
norms on promotion and protection of the rights of indigenous peoples.
A. Overview of existing legislation on promotion and protection of
the human rights of indigenous peoples
7.
On the American continent, where for a long time indigenous peoples were not
recognized as specific groups of the national population, numerous constitutional reforms
relating to indigenous peoples have been carried out or new special laws enacted in recent
decades. Argentina, Bolivia, Brazil, Colombia, Ecuador, Guatemala, Mexico, Nicaragua,
Panama, Paraguay, Peru and Venezuela have undertaken constitutional reforms in which some
rights of indigenous peoples have been recognized. In Canada the 1982 Constitution Act
recognizes aboriginal rights, but the other countries of the American region do not recognize the
rights of indigenous peoples in their constitutions.
8.
These legislative reforms embrace many issues, such as land ownership and territorial
rights, use of one’s own language, education and culture and, in some cases, autonomy and
self-government, as well as customary law (sometimes referred to as “usages and customs”).
During the last decade of the twentieth century, all the Andean countries with the exception of
Chile amended their constitutions, recognized legal pluralism and ratified International Labour
Organization (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples:
Colombia (1991), Peru (1993), Bolivia (1994), Ecuador (1998) and Venezuela (1999). Chile has
a 1993 Act on the subject, and a constitutional reform on the matter is pending (see
E/CN.4/2004/80/Add.3). In similar language, those constitutions recognized the indigenous and
campesino authorities’ jurisdictional power (to administer justice or settle disputes), according to
their customary law or customs.