Native rights are closely intertwined with such basic issues as traditional systems of justice. Native rights exist within the context of the unilateral construction of nation-states which seek a homogenized society, negating minority rights in the process.
These nation-states have organized a regime which recognizes individual rights at the expense of collective rights.
One of our fundamental objectives is to obtain recognition of basic collective rights, including land claims, control of natural resources, respect for our forms of organization, the right to exist as a people, and to use our own systems of justice within our jurisdictions.
While some countries, notably Colombia and Bolivia, have made some headway in recognizing native rights, many legal issues related to applicability still remain.
In Ecuador, native rights are not recognized by the Constitution. Provisions about multi-ethnicity recognize cultural diversity but do not address crucial political issues, such as autonomy.
Certain international agreements addressing native rights issues, including ILO Resolution 169, have not been ratified by Ecuador. This Resolution, although it sets limits on the concept of "native peoples", calls for recognition of land claim entitlements and upholds the right to control natural resources and to be consulted and take part in any activity or initiative undertaken by the state. The Resolution also recognizes certain forms of native administration of justice.
Opponents who have stood in the way of ratification allege that the ILO Resolution is unconstitutional. Those who control political power have traditionally stood fast against recognition of native rights. International agreements, however, are helping introduce some reforms to national legislation.
The Convention on Biological Diversity, for example, recognizes certain rights in respect of traditional forms of healing, natural resources, and genetic resources. Industrialized nations, however, continue to exploit natural resources and inflict damage upon the environment, often disguising their voracity under conservationist pretenses which only seek to preempt native practices much more compatible with the protection of Nature. Section J of this Convention recognizes some of these fundamental native rights.
Ecuador and the United States have signed a Bilateral Agreement on Intellectual Property Rights. The natives of Ecuador stand opposed to ratification of this agreement because it prevents us from exercising our right to control the natural resources existing within our traditional lands.
Natives must outline a legal strategy to protect our entitlements, up to and including having recourse to international human rights organizations, as we have done in the past.
The Draft United Nations Declaration on the Rights of Indigenous Peoples is a step forward with respect to Resolution 169. For example, it recognizes the right to self-determination, and clarifies the concept of native peoples. However, some members of the United Nations are maneuvering to weaken passages calling for full recognition of native rights.
The Organization of American States is also working on a Declaration on the Rights of Indigenous Peoples. However, this document is being drafted without the participation or contribution of natives peoples. This draft resolution is more restrictive than Resolution 169, and amounts to a step backward in the struggle for recognition of our rights. This is especially menacing in the context of rising globalization and neoliberal trends.
It is fundamental that native peoples take part in and contribute to international agreements on native rights, especially in order to push for their implementation in actual practice. These agreements did not come to recognize native rights gratuitously. They did so as a result of our own efforts and struggle.
We have come a long way in renewing our sense of self-worth and reclaiming our identity, but now we must work to build and develop an ideology of our own. Our contribution is oriented toward changing the way society is arranged, so that both individual and collective rights are secured.
We must recognize the right to make mistakes as we practice a renewed internal democracy at the local level and within our own organizations. We must also strive for harmony between what we preach and what we practice.
As peoples which have existed in a historical continuum, we have never relinquished our ancestral systems of justice and punishment, which differ from Western practices. The nature of the native way of administering justice is collective, oral, summary, and seeks rehabilitation, rather than mere punishment. There is a clear need to find a balance between these two systems.
The Constitution of Ecuador does not recognize native land claims. While it recognizes a right to use the land, it does not recognize entitlements to what lies under it.
States and legal systems are created and organized by those in control, who normally tend to disregard native rights. Ecuador is not homogenous; it is diverse. This is why we assert the existence of a multi-nation state. Yet, the natives of Ecuador do not wish to create a state within a state.
The Native Nations Law first proposed in 1988 was bitterly opposed by those who would keep us vanquished forever. In Ecuador, individual rights are not adequately protected; much less so collective native rights. The laws of Ecuador, for example, do not recognize a native identity or the status of our leaders. We assert the need to grant official standing to native languages and to strengthen bilingual education programs.
Resolution 169 was ratified in Guatemala. Although this Resolution made some modest progress in representing some of our interests, it left structural issues, such as the alarming rate of illiteracy, virtually untouched.
There is a need to educate our people in understanding what the Native Nations Law states so that its provisions can be used in our favor whenever possible. With or without a law, however, we must define our objectives as peoples. In this respect, we wish to emphasize:
Natives peoples have never ceased to fight for their rights. Now we need to reclaim and reassess their worth and contents. Our traditional systems of justice contain provisions to run and protect our communities. We need to use our own laws to adequately protect the life of all beings which are part of our community.
The organized native movement of Ecuador has twice been successful in shaping legislative reform: The agrarian law and the water use law. Native communities throughout the country organized, discussed and mobilized in the defense of their rights.
We believe that it is high time that the provisions of the Native Nations Law be revitalized and updated. We reassert our will and decision to start a process to convene a Constituent Assembly on the issue of a multi-nation state. The call for such an assembly must set forth the timetable, the opportunities and the methods by which this process will come to fruition. We do not seek the mere recognition in the books of a multi-nation state. We seek to build a true multi-nation society and state.
In this pursuit we may require more than a legal strategy. We will require a clear strategy to thwart those who oppose all such changes in Latin America. In this context, striving for ratification and practical implementation of international agreements is important.
As part of the International Decade of the World’s Indigenous People, we must urge UN member states to demonstrate a clear political will to ratify and implement all international accords in respect of native rights.
Ecuador must guarantee the application of the Agrarian law and the continuity of the agencies in charge of implementing agrarian policy.
We must seek consensus and dialogue with all sectors of the state and society. The native peoples demand the right to participate in the process of setting state policy in respect of native rights.