United Nations Special Rapporteur on the rights of indigenous peoples José Francisco Calí Tzay delivered following statement in the fifteenth General Assembly inaugural session of the Fund for the Development of Indigenous Peoples of Latin America and the Caribbean (FILAC).
Translated from the original Spanish Version
Statement for the
XV FILAC GENERAL ASSEMBLY
Inaugural Session
October 28, 2021
Francisco Calí Tzay
United Nations Special Rapporteur on the Rights of Indigenous Peoples
Mr. President Luis Alberto Arce Catacora, Mr. Vice Chancellor Fredy Mamani Machaca, Dr. Mirna Cunningham president of FILAC, Mr. Juan Ignacio Pita Vice President of FILAC, excellencies of the diplomatic corps, sisters and brothers representatives of Indigenous Peoples, representatives of the Member States of FILAC, each of you have a very good morning.
It is a great honor to participate in the inauguration of the XV General Assembly of FILAC. FILAC is carrying out fundamental work in the promotion of public, legislative, judicial and budgetary policies to ensure that indigenous peoples in the Americas enjoy and exercise all their rights.
During the inter-ministerial dialogue, several challenges faced by the continent of Abya Yala in ensuring the effective recognition of the rights of indigenous peoples emerged. For example, the need for effective recognition of the right to self-determination and self-government, control of indigenous land and territory, lack of effective consultation processes and criminalization of activity in defense of their lands and territories, as well as defenders of indigenous peoples' rights.
I would like to focus my intervention today on the importance of integrating the framework of international law on the human rights of indigenous peoples into domestic law, particularly in development policies.
At the international and regional level, a very rich legal framework has been developed for the effective protection of indigenous peoples rights. It should be remembered that indigenous peoples are always covered by international human rights law, but because of their special status, a suis generis legal system also applies, which to date constitutes the minimum standards of protection for indigenous peoples that states must apply domestically.
There are several instruments of international law for the protection of indigenous peoples, for example, ILO Convention 169, which is a binding international treaty for 15 Latin American countries that have ratified it.
I would like to point out with pride that Latin American countries have been leaders in the adoption and application of this convention; out of a total of 24 countries that have ratified the convention, the majority are Latin American, therefore, I invite the States that have not yet ratified it to do so as soon as possible.
The other fundamental instrument is the United Nations Declaration on the Rights of Indigenous Peoples, which was adopted with the support and favorable vote of almost all Latin American countries.
At the regional level, we have the American Declaration and the American Convention on Human Rights. From this point of view, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have developed an evolving jurisprudence interpreting many of the provisions of these treaties in light of the specific needs of indigenous peoples, as is the case of Article 21 of the Convention, which today also includes the protection of the right to collective ownership of land and resources in accordance with indigenous customary law. Finally, in 2016, the American Declaration on the Rights of Indigenous Peoples was adopted at the regional level.
These legal instruments constitute minimum standards for the protection of the rights of indigenous peoples, in particular States must apply the UN Declaration on the Rights of Indigenous Peoples at the level of domestic law and in all policies relating to the rights of indigenous peoples, including development policies.
Regarding development, I would like to point out the importance of respecting the right of indigenous peoples to self-determination. This right is well established at the international level in common Article 1 of both the International Covenants on Human Rights and in Article 3 of the UN Declaration on the Rights of Indigenous Peoples. The right to self-determination is a prerequisite for the effective exercise of all other collective and individual rights of indigenous peoples, as well as the right to indigenous development.
For the right to development to be effectively exercised, indigenous peoples must be able to participate directly in the creation of development policies that concern them. As stated in Article 19 of the UN Declaration, in the case of the adoption of development policies and programs, States shall consult and cooperate in good faith with indigenous peoples concerned through their representative institutions in order to obtain their free, prior and informed consent.
Furthermore, the UN Declaration in Article 23 is clear in recognizing that, in the case of development policies, "indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development”. In particular, indigenous peoples have the right to “participate actively in the elaboration and determination of health, housing and other economic and social programs affecting them and, as far as possible, to administer such programs through their own institutions.”
In this sense, for the right to development to be effectively implemented, it is essential that state development programs incorporate the life plan of indigenous peoples, the indigenous cosmovision, what here in Bolivia you call good living, Sumaj Qamaña, in Ecuador Kawas Sumak and Utz' K'aslimaal in Guatemala.
This also applies in cases of use and management of indigenous resources and as an integral part of the recognition of the right to indigenous lands and territories. In this sense, the right to land must be accompanied by the recognition of effective control over the use of resources and respect by States for indigenous land management in accordance with the indigenous worldview of good living. Often, although the communities have title to their lands, the States impose economic plans and development policies that do not conform to the indigenous peoples' life plan.
It is also not possible to speak of development if there is no effective control over the lands and territories of indigenous peoples. The implementation of the right to lands and territories requires that States recognize colonial titles issued to indigenous communities by the Crown, or when these do not exist, respect the provisions of international law according to which, indigenous peoples have communal property rights over the lands and resources that they have historically used and occupied by virtue of their customary land tenure systems.
There can be no development without an effective right to free, prior and informed consultation as established in the UN Declaration on the Rights of Indigenous Peoples and other international instruments. That is why I invite states to adapt consultation legislation that is based on international standards.
Development must be carried out in accordance with the indigenous cosmovision, respect for nature and indigenous scientific knowledge. One of the challenges of the coming years for States is to promote actions and policies to mitigate the negative effects of climate change. This is an important opportunity for States to recognize the role of indigenous peoples in the conservation of the environment and biological diversity to strengthen their rights. In this sense, States are called upon to prioritize actions aimed at implementing the right to environmental conservation and protection, as established in Article 29 of the UN Declaration on the Rights of Indigenous Peoples. From this point of view, conservation programs promoted in indigenous territories must strengthen indigenous autonomy and respect the right to free, prior and informed consent. These programs must also adopt a biocultural approach. In this regard, it has been shown that there is a correlation between the protection of cultural and linguistic diversity and the protection of biological diversity. This correlation has also been recognized by the Convention on Biological Diversity, Article 8(j) of which stipulates the commitment of States to protect and promote indigenous knowledge as a driver of biodiversity protection.
Development cannot be achieved without recognizing the primordial role that indigenous women play in the transmission of indigenous languages, scientific knowledge and the protection of nature, it is essential to promote actions that strengthen women's leadership and political participation. It is also necessary to promote policies to reinforce the transmission of indigenous languages and scientific knowledge to future generations and to recognize the role of women as guardians of knowledge as a way to prevent and mitigate the effects of climate change.
There can be no development if indigenous people, and particularly women, continue to suffer racism and racial discrimination in access to basic services and in access to high State positions.
Finally, there can be no development if indigenous land and environmental defenders are threatened and killed. States must intervene to provide concrete answers to the structural causes that lead to this high number of victims, and which are found in conflicts related to the control of indigenous lands, the adoption of laws that criminalize human rights defenders and a climate of impunity for those killed.
There can be no development if we do not listen to the voice of the indigenous youth who have demonstrated in recent days that they have ideas, demands and proposals. These demands and proposals must be assumed by the States so that the human rights of indigenous peoples are effectively protected and so that development is fair and equitable.
Thank you