What is unique for indigenous peoples is how the different types of rights recognized within international law intertwine. For instance, over time, market forces like those described above can undermine an entire people’s continuous occupancy of the land. Since occupancy is key to defending ancestral land under post-colonial property law regimes, and since indigenous rights flow from land title, the effect is to strip away any prospect of justice under international law. Therefore, what first appears as simply another case involving individual human rights, actually has another layer which involves the infringement of the collective rights of a people (discussed below).
are thus firm on the inclusion of this principle in the text. It is clearly articulated in several articles, including:
Article 3: Indigenous people have the right to self-determination.
Article 12: Indigenous people have the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.
Article 29: Indigenous people are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property (United Nations Commission on Human Rights, 1999).
Many governments, particularly those facing active land claims by indig- enous peoples (e.g. Canada, Australia and New Zealand), are attempting to water down indigenous peoples’ demand for ‘prior informed consent’
to ‘consultation’. None the less, full self-determination remains the bench- mark in international law.
In the context of tourism, self-determination means the right of a com- munity to decide whether it wants to have a tourism economy, which parts of its culture will be shared and which will remain private, and what type of protocols will govern access to and use of cultural property. By implication, it entails land rights. Neither abstinence from tourism, nor regulation or entrepreneurship, are possible without title over ancestral lands. The cultural survival of indigenous peoples is dependent on land title. Within the UN Commission on Human Rights, indigenous peoples’ relationship with the land is recognized as the foundation of culture (Daes, 1999).
The subject of land title, consistently raised by indigenous peoples in discussions on tourism, has proved to be a difficult point of communica- tion. To business interests familiar with European concepts of property,
‘title’ means the equivalent of free simple ownership. However, in reality ancestral title is a much more onerous form of stewardship, which is spiritu- ally defined. It carries obligations to care for the lands that are considered sacred. The land is to be held in trust for future generations and cannot be sold. Some indigenous peoples call this the ‘Seventh Generation Principle’.
Any potential for an indigenous community to profit from tourism would normally be assessed in this light, unless some form of duress, such as extreme poverty, interferes with decision-making.
Indigenous peoples’ concepts of development stem from their relationship with the land. While these concepts are personalized within each culture, there are shared characteristics across continents. One of the shared values is to look after not just the material or physical (e.g.
economic) needs of community members, but also the mental, emotional and spiritual. As such, indigenous knowledge about ‘development’ has spiritual dimensions, which take precedence.
Expertise is not divorced from prayer and ceremony, but rather dependent on it. Visions and prophecies are understood as vital cues to co-existence and survival. Elders and spiritual leaders are looked to for wisdom and sacred places provide a reminder of the holistic relationships between Creator and Creation.
(Johnston, 1997: 5) Globally, the legacy of this history is high biological diversity within indigenous territories (Reichel-Dolmatoff, 1999). Scientists have accepted the link between cultural and biological diversity as a major theme in UN negotiations on biodiversity (discussed below). Meanwhile, many indig- enous peoples witnessing the ecological damage achieved elsewhere within a short time through western concepts of development have been instructed by their Elders to teach, or to help outsiders understand that all things are connected. Some of these communities are now developing pilot projects to share elements of their traditional knowledge through tourism.
One of the common misconceptions that arises from an indigenous community’s objection to a tourism proposal or to existing tourism activities is that it is challenging jurisdiction or objecting simply to make a political point. In a secular society, this interpretation might seem logical. However, indigenous peoples’ customary laws for using the land are grounded in a long time horizon, within a different understanding of purpose, space and time. Ecologist David Suzuki (1997), following his work with a number of indigenous peoples around the world, described this vision as ‘The Sacred Balance’. The difference in world view that Suzuki observed is not cause for conflict, but rather reason for dialogue. The key to communicating about self-determination is to understand that protocol is involved. Successful partnerships with indigenous communities occur when both parties take a sincere interest in relationship building, placing people and not business at the centre of discussion.
Prior informed consent
Securing a baseline of prior informed consent in negotiations with outside business interests is one of the greatest challenges faced by indigenous peoples. Equally difficult is the process of making an independent community-tourism initiative airtight to industry profiteering. In both instances, there are not only a variety of access and benefit sharing issues to address, but also the complex question of intellectual property (Johnston, 2000). The first concern most often stated by indigenous peoples in inter- national forums is their right not to sell, commoditize or have expropriated certain domains of knowledge and sacred places, plants, animals and objects (Posey, 1995: 10).
One area where indigenous communities have experienced great frustration in this regard is in relation to protected areas. To many governments, protected areas are the vehicle of choice for biodiversity con- servation, as they greatly increase a country’s marketability to ecotourists, as well as to an array of funding agencies, who are interested in supporting environmental initiatives. This model of conservation is seen as a win–win solution to land conflicts, showing that ecotourism can serve as a financial incentive for biodiversity conservation.
While there are notable examples internationally of co-management agreements between government and indigenous communities whose trad- itional territory is incorporated within a protected area, most indigenous peoples’ response to the protected areas movement has been guarded.
Many feel that protected areas provide a politically correct way for govern- ment to negate indigenous land title. The perception is that protected areas can essentially privatize a peoples’ ancestral homeland. Government criteria are utilized in processing visitation applications. Henceforth, an indigenous community can seldom prevent unwanted tourism, or maintain a stewardship role by giving conditional approval.
Some indigenous communities have chosen to circumvent the issues of prior informed consent around protected areas by developing their own tourism enterprises on lands in danger of destructive resource extraction.
There are several examples of this within the Amazon basin of Ecuador.
Through tourism and the presence of tourists, peoples like the Cofan and Hoarani have scored successes against Ecuador’s environmentally savage oil industry (Kane, 1998).
That said, asserting self-determination on one front does not eliminate the need for a community to cross-check all other directions for possible encroachment. In August 1999 another neighbouring tribe in this same region of Ecuador lost eight members to military gunfire at a peaceful roadblock, during their attempt to prevent oil-drilling machinery from entering their territory, by a means other than tourism. In this case, the right to prior informed consent was forcefully seized. No news of this event reached the popular media.
This oblivion is a daily threat that many indigenous communities live under. Many are therefore attempting to build information-sharing alliances outside of their own country with indigenous peoples and other supportive groups that can provide technical assistance, including legal and media intervention. Tourism is a frequent topic of discussion on this ‘moc- casin telegraph’, as both a threat to cultural survival, and a tool to exercise rights to control, utilize and manage collective cultural property. Access to information and the ability to analyse it and freely communicate findings are the prerequisites to prior informed consent in the realm of tourism.
Like protected areas, the subject of indigenous knowledge is generat- ing a flurry of dialogue with respect to prior informed consent. Around the
world, indigenous peoples have in common complex oral and artistic systems for documenting their expertise (i.e. in ecosystem conservation and other sustainability processes) and for passing these skills to coming generations. Much of this knowledge, such as the use of medicinal plants, is considered sacred, and therefore has traditionally been subject to regula- tion by the Elders. However, now that indigenous knowledge is of value on the international market, owing to the interest of New Age followers, thrill seekers, and pharmacology researchers and investors, it is possible in some indigenous communities for tourists to purchase curative treatments or guided forest tours (Proctor, 2001). While this type of tourism product often tells of a break in protocol between generations or families in a community, in some cases the Elders are fully involved and believe that this knowledge can be shared on respectful terms.
Regardless of the scenario, a constant within most communities offering such tourism exchanges is a dangerous lack of knowledge about the indigenous rights issues surrounding what has become known in the Western world as intellectual property. Thus, in some Maasai communities in Kenya, it is possible to go on a guided walk, where the species and medici- nal applications of each local plant are labelled in English for all to see.
Such communities rarely ‘catch up’ with the legal and political implications of showcasing their knowledge before it is too late, and this exposure has jeopardized the very elements of culture they intended to protect.
There is no prospect in sight of a reliable mechanism for indigenous peoples to alert one another of the dangers of responding to the
‘knowledge seeking’ trend among tourists and potential investors posing as tourists, since it is in the financial interest of governments and industry to liberalize access to resources, and funding is directed accordingly. Under current international modes of business and standards of conduct, it can safely be said that there is no incentive for tourism companies to establish the conditions necessary for prior informed consent. The few instruments for comprehensive cultural protection that exist internationally have been formulated and championed by a handful of indigenous peoples whose circumstances allow them to plug in to the now globalized discussion of indigenous rights. No international institution of significant size is coming forward to facilitate technical support from indigenous peoples that have this type of expertise directly to those communities that badly need it.