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IACL World Congress, Mexico  
Workshop 7: Multiculturalism and the rights of Indigenous Peoples

In the wake of the UN’s adoption of the Declaration on the Rights of the Indigenous Peoples, groups living on all continents are seeking the constitutional recognition of collective and individual rights based on the principle of “aboriginality” or “indigenousness”. Such indigenous claims raise very sensitive issues since they often challenge principles, values and interests which the constitutional order is otherwise designed to protect. Thus, indigenous groups often assert an ancestral title to vast tracts of land and natural resources that have become the property of the state or of private owners and that play a central role in the economic development of the nation. They also demand self-government and the protection of their distinctive identities and cultures. On a most fundamental level, these demands amount to a call for a redistribution of wealth, power, historical and cultural legitimacy within states that have a more or less distant colonial past. The recognition of special rights for ethno-cultural groups also raises the issue of their reconciliation with the state’s duty to safeguard fundamental individual rights, the equal rights of all citizens and national sovereignty.

Indigenous claims entertain an uneasy relationship with multiculturalism since indigenous peoples do not regard themselves as mere components of a diverse cultural mosaic that often results from immigration and constitutes the fabric of the national political community. Their stand is grounded in the historical exceptionality of first peoples and their unique quest for internal decolonization.

Constitutional practice regarding the status of indigenous peoples is currently quite varied. Many national constitutions already afford indigenous peoples ample recognition and provide for a substantial catalogue of indigenous rights, the most remarkable example of this trend being found in the new Bolivian constitution. In contrast, other constitutional systems are not receptive to indigenous claims. In some states, indigenous rights are implemented through ordinary legislation, administrative action or the common law but do not enjoy constitutional recognition and status.

This workshop will critically examine the challenges, the processes and the limits of the constitutional recognition of indigenous rights in modern democracies.

  • What constitutional principles justify or hamper such recognition?
  • Are federal systems better suited to accommodate indigenous claims? How do such systems adapt to such claims?
  • What is the impact of multiculturalism on the constitutional approach to aboriginality or indigenousness?
  • In countries where indigenous rights enjoy constitutional status, how does the fundamental law reconcile such collective rights with other cardinal components of the constitutional edifice such as the protection of fundamental individual rights, the equal rights of all citizens, the state’s asserted sovereignty over natural resources and national unity?
  • What is the substance of constitutionally acknowledged indigenous rights and what key constitutional principles or doctrines have been developed by the judiciary or constitutional courts with regard to the interpretation and the limitation of these rights? Do indigenous rights comprise and extend beyond ancestral practices?
  • Is constitutional jurisprudence influenced by international instruments and decisions taken by international bodies and courts with respect to indigenous claims? What has been in the Americas the influence of the recent jurisprudence of the Inter-American Court of Human Rights?
  • Does constitutional recognition lead to indigenous legal systems being treated as valid sources of law thus creating some degree of constitutional legal pluralism? How are state law and indigenous law coordinated?
  • What constitutional principles and rules govern the resolution of indigenous land claims and the exercise of indigenous self-government?

These are only some of the issues that participants might want to address from a comparative or national perspective.

Ghislain Otis [This email address is being protected from spambots. You need JavaScript enabled to view it.], Francisco Ibarra Palafox and Menaka Guruswamy.

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