GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
which the country belongs, at the time of conquest or colonisation or the establishment
of present state boundaries and who, irrespective of their legal status, retain some
or all of their own social, economic, cultural and political institutions (Art 1,
number 1, letter b). They also apply to tribal peoples in independent countries
whose social, cultural and economic conditions distinguish them from other sections
of the national community, and whose status is regulated wholly or partially by
their own customs or traditions or by special laws or regulations (Art 1, number
1, letter a).
In the Guide to Applying Convention 1691 , the ILO indicates that there are
subjective as well as objective elements that define an indigenous people. Amongst
the latter are (1) historical continuity in terms of societies that are descended from
pre-conquest or pre-colonisation groups; (2) territorial connection in the sense that
their ancestors inhabited the country or region; and (3) distinct and specific social,
economic, cultural and political institutions, which are particular to the group and
are retained in whole or in part.
For its part, the Inter-American Court of Human Rights has defined a tribal people
as a people that is not indigenous to the region, but that share similar characteristics
with Indigenous Peoples, such as having social, cultural and economic traditions
different from other sections of the national community, identifying themselves
with their ancestral territories, and regulating themselves, at least partially, by their
own norms, customs, and traditions.2
In any case, the fundamental criterion that guides entitlement to the rights included
in Convention 169 is self-identification as indigenous or tribal (Art. 1, number 2).
Currently, the opinion prevails that an official universal definition of this term is
not necessary, but rather the understanding of the term Indigenous Peoples. For
practical purposes, the commonly accepted definition in this respect is that contained
in the study by Martínez Cobo. 3
“Indigenous communities, peoples and nations are those that have a historic
continuity with pre-colonial, pre-invasion societies, who flourished in their territories.
They consider themselves to be different from other sectors of the societies that
1 ILO. Programme to Promote ILO Convention No. 169. 2009. Available at
‹http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_106474.pdf›.
2 Inter-American Court of Human Rights. Judgment in the case of the Saramaka People v. Suriname. 28 of November
2007. Paragraph 79.
3 United Nations Document E/CN.4/Sub.2/1986/7 and Add. 1 - 4 (translated here by Hillary Voth). The conclusions
and recommendations of the study appear in Addendum 4, and they are also available as a United Nations Publication
(United Nations document, sales number: E.86.XIV.3). This study began in 1972 and ended in 1986, at which point it
became the most voluminous study of its kind, based on 37 case studies.
8