Economic, social and cultural rights of indigenous peoples in the post-2015 development framework

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United Nations | General Assembly

Sixty-ninth session

Item 66 (a) of the provisional agenda**

Rights of indigenous peoples

Distr.: General

6 August 2014

A/69/267

Original: English

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Note by the Secretary-General

The Secretary-General has the honour to transmit to the General Assembly, in accordance with Human Rights Council resolution 24/10, the report of the Special Rapporteur of the Human Rights Council on the rights of indigenous peoples, Victoria Tauli-Corpuz.

 

Report of the Special Rapporteur of the Human Rights Council on the rights of indigenous peoples

Summary The Special Rapporteur on the rights of indigenous peoples, pursuant to Human Rights Council resolution 24/10, presents this, her first report, to the General Assembly. Given that the Assembly is currently in the process of reviewing and adopting the post-2015 development agenda, including global sustainable development goals, the Special Rapporteur takes this opportunity to provide some thoughts on this crucial issue for indigenous peoples, in the hope that these comments may help guide Member States and others as they reflect on development priorities. The progressive achievement the economic, social and cultural rights of indigenous peoples poses a double challenge to the dominant development paradigm: on the one hand, indigenous peoples have the right to be fully included in, and to benefit from, global efforts to achieve an adequate standard of living and to the continuous improvement of their living conditions. On the other, their right to define and pursue their self-determined development path and priorities must be respected in order to safeguard their cultural integrity and strengthen their potential for sustainable development. These two concerns are addressed through the complementary and cross-cutting principles of non-discrimination and self-determination, as enshrined in the United Nations Declaration on the Rights of Indigenous Peoples, as well in the full range of international human rights instruments, including the International Covenant on Economic, Social and Cultural Rights. The shortcomings of the Millennium Development Goals to embody human rights and to achieve indigenous peoples’ economic, social and cultural rights must inform the new generation of sustainable development goals. Key areas to be addressed include: the diversification of development paradigms and strategies; the construction of new models for partnerships with indigenous peoples; the establishment of monitoring mechanisms through disaggregation of data and monitoring of key attributes pertaining to the right to self-determination; the acknowledgment of — and action to combat — discrimination against indigenous peoples in both rich and poor countries across the globe; delivery of culturally appropriate social services; respect for traditional occupations and labour rights; the design of effective measures to overcome discrimination against indigenous women; and improved governance in the context of national and international development initiatives, including mechanisms to ensure consultation, participation and free, prior and informed consent. As the world prepares to define the next generation of sustainable development goals and the post-2015 development agenda to be achieved by 2030, the Special Rapporteur highlights the need to look back at the experiences generated in the context of the framework and implementation of the Millennium Development Goals in order to avoid repeating mistakes, learn from constructive approaches and ensure that the next generation of global development goals and related targets and indicators are developed on the basis of an informed background. The Special Rapporteur offers a series of recommendations for addressing these concerns in the context of the forthcoming policies and strategies to reach global sustainable development goals.

           I.   Introduction

1.       The Special Rapporteur of the Human Rights Council on the rights of indigenous peoples submits the present report to the General Assembly pursuant to Human Rights Council resolution 24/10. This is the first report by Victoria Tauli-Corpuz, who assumed her mandate on 2 June 2014. The Special Rapporteur would like to thank the Human Rights Council for entrusting her with this important task and she commits herself to carrying out this mandate in an impartial and constructive manner. She also would like to express her gratitude to the numerous indigenous groups and organizations that have already engaged with her as she assumed her mandate and affirms her strong commitment to her role as Special Rapporteur, acknowledging, with humility, the responsibility it represents.

2.       The present report focuses on indigenous peoples’ economic, social and cultural rights in the development context, and specifically within the post-2015 development framework. As noted in her first report to the Human Rights Council (A/HRC/27/52), the economic, social, cultural and environmental rights of indigenous peoples will be a principal thematic focus of the Special Rapporteur’s three-year mandate. Given that the General Assembly is currently in the process of reviewing and adopting the post-2015 development agenda, which includes work towards the adoption of global sustainable development goals, the Special Rapporteur is taking this opportunity to provide some thoughts on this crucial issue for indigenous peoples, in the hope that these comments may help guide Member States and others as they reflect on development priorities.

3.       The report offers an overview of the human rights framework and of concerns related to the development of indigenous peoples: part II provides a background of the historical context; part III details relevant human rights standards, which should be viewed in the light of the cross-cutting rights of indigenous peoples to
non-discrimination and self-determination; part IV describes lessons learned and identifies obstacles and advances in achieving the economic, social and cultural rights of indigenous peoples; and part V contains brief conclusions and recommendations for addressing these concerns in the context of the forthcoming policies and strategies to reach global sustainable development goals.

          II.   The historical context

4.       The Special Rapporteur notes that the concept of development has always had an ambiguous connotation in the context of indigenous peoples. Historically, in the era of colonization and nation-building, development largely implied the submission of indigenous peoples, who had previously enjoyed their right to self-determination. Seen through the eyes of the colonizers and rulers, indigenous peoples were hardly considered human beings, and many were exploited as forced or underpaid labourers in plantations and mines and in other resource-extraction activities. In other cases, indigenous peoples were pushed to marginal areas, while more productive lands and easily accessible resources benefitted the rulers and dominant groups. The most egregious example of this was the taking of indigenous peoples’ lands and resources for the benefit of the majority — for their economic growth and in other terms — with devastating impacts on a range of their human rights.

5.       In most cases, the original development paths of the indigenous peoples were disregarded and disrupted, and “development” was conceived as a one-dimensional process, measured in terms of economic growth and increase in gross national product (GNP). This development model failed to take into account the diversity of human livelihoods, cultures and concepts of well-being. The Special Rapporteur also notes that this led to a situation of double discrimination against indigenous peoples: not only were they deprived of the economic and social benefits of contemporary development, which was often carried out at their expense, at the same time their cultures, languages and production systems were stigmatized as backward, primitive and uncivilized.

6.       These misperceptions were still dominant in the late 1950s, when the International Labour Organization (ILO), on behalf of the United Nations-system, adopted Convention No. 107 on indigenous and tribal populations. This Convention was the first attempt to codify the international obligations of States in respect of indigenous peoples, and it is a clear reflection of the development discourse at the time it was adopted. While the Convention recognized indigenous peoples as human being with basic rights that should be protected, they were also understood as being in a “deficit position”, that is, they were considered as being at a less advanced stage than other sectors of society. The Convention thus called on States to gradually assist indigenous peoples to fully integrate into the national community. In other words, through development, they would cease to exist as distinct peoples, the goal being equality of rights and opportunities, but without the diversity of identities, culture and development paths.

7.       During the 1970s and 1980s, this perception was forcefully challenged by indigenous peoples, who manifested their determination to maintain and pass on to future generations their unique cultures and distinct social, governance, production and knowledge systems. This determination led, in 1989, to the adoption of ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, which explicitly aims, in its preamble, at “removing the assimilationist orientation of the earlier standards”.

8.       The claim of indigenous peoples to self-determined development was further reinforced in the 1992 Rio Declaration on Environment and Development, which acknowledges indigenous peoples’ “vital role in environmental management and development because of their knowledge and traditional practices” (principle 22). The Rio Declaration further calls on States to recognize and duly support indigenous peoples’ identity, culture and interests and to enable their effective participation in the achievement of sustainable development.

9.       Finally, through the 2007 adoption of the United Nations Declaration on the Rights of Indigenous Peoples, the global community at large acknowledged indigenous peoples’ right to development in accordance with their own aspirations and needs. In its preamble, the Declaration recognizes that “indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests”. It thus guarantees, in a series of provision, the right of indigenous peoples to development in accordance with their own aspirations and needs, and connected with other social, economic, and cultural rights, as noted in more detail in part III, below.

10.     In spite of such progress, the Special Rapporteur notes that there is still a considerable implementation gap with regard to the effective realization of these rights. The long history of colonization and attempts at assimilation of indigenous peoples has continuing effects today. In nearly all of the countries in which they live, indigenous peoples fare worse than non-indigenous sectors of the population in terms of their development, including levels of poverty, education, health, unemployment, housing conditions, clean water and sanitation. Furthermore, in a number of States, indigenous peoples’ development strategies and aspirations are still met with negative stereotyping and their contributions in terms of biodiversity conservation, ecosystem services and sustainable food production, for example, are often not well understood.

11.     Experiences and lessons learned from the global and national efforts to reach the Millennium Development Goals have shown that indigenous peoples are still frequently excluded from mainstream development efforts and face severe obstacles when attempting to follow their own development paths. In the following sections, the Special Rapporteur draws attention to these lessons learned, underlining the importance of taking them into account in the efforts to reach agreement on the sustainable development goals and the post-2015 development agenda.

        III.   Economic, social and cultural rights as they apply to indigenous peoples

             A.    Complementarity of instruments: universality of duties

12.     As noted above, development measures have historically been exclusive, carried out at the expense of indigenous peoples or aimed at their assimilation. These trends have been gradually, albeit not sufficiently, reversing over past decades. The movement away from exclusive and assimilationist development is reflected in the international human rights framework overall, and especially in the specific human rights standards that apply to indigenous peoples, such as the Declaration on the Rights of Indigenous Peoples. As has been emphasized by the previous Special Rapporteur (see A/68/317, para. 70), the Declaration does not create new or special rights or privileges for indigenous peoples, but is to be understood as a remedial instrument that provides the necessary minimum standards for indigenous peoples to be able to enjoy the full range of their human rights and fundamental freedoms without any discrimination.

13.     This is true in the context of economic, social and cultural rights, in particular as reflected in the International Covenant on Economic, Social, and Cultural Rights, a human rights instrument of universal applicability. The Declaration mirrors universal human rights contained in this and other instruments, and contextualizes these to the situation of indigenous peoples by emphasizing their collective aspects, building on the complementary principles of non-discrimination and self-determination, as noted below. Hence, the Special Rapporteur stresses that the duty of States to respect, protect and fulfil indigenous peoples’ economic, social and cultural rights is based not only on their commitment to specific instruments on indigenous peoples’ rights, such as the Declaration and ILO Convention No. 169, but is an integral element of their duty under the International Convenant and other applicable human rights instruments.

14.     The Special Rapporteur appreciates the attention paid to the situation of indigenous peoples by the Committee on Economic, Social and Cultural Rights and other treaty monitoring bodies, procedures and mechanisms, including human rights monitoring bodies at the regional level, and underlines her commitment to work in a collaborative manner to further strengthen the complementarity between those holding mandates on general human rights and those holding specific mandates with regard to indigenous peoples’ rights.

             B.    Self-determination and non-discrimination as cross-cutting principles

15.     Central to the contextualization of universal human rights to the situation of indigenous peoples are the rights to non-discrimination and self-determination. These rights are enshrined in a broad range of human rights instruments of general applicability, but are featured throughout the Declaration, including in relation to economic, social and cultural rights. The complementarity of these two principles are captured in the preamble of the Declaration, which affirms “that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such”.

16.     In the context of development, contemporary standards related to indigenous peoples have a dual overarching aim. On the one hand, they strive to effectively address discrimination against indigenous peoples so they can fully benefit from development efforts to achieve an adequate standard of living. On the other hand, the standards aim to ensure respect for their right to define and pursue their
self-determined development paths in order to safeguard their cultural integrity and strengthen their potential for sustainable development. Thus, the international framework pursues these two complementary aims through the cross-cutting principles of non-discrimination and self-determination.

17.     The right to non-discrimination in the context of economic, social and cultural rights aims at ensuring substantial equality in the progressive achievement of these rights. It should be noted that the principle of non-discrimination has two dimensions: to ensure equality for all indigenous individuals, both men and women, and for indigenous peoples as collectives. This is made explicit in the Declaration, which stipulates that “Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity” (article 2), and further that all rights and freedoms in the Declaration “are equally guaranteed to male and female indigenous individuals” (article 44).

18.     For its part, the right to self-determination in the context of economic, social and cultural rights is intended to combat historical assimilation and ensure that indigenous peoples can maintain their cultural integrity and pursue their own aspirations for self-determined development. Beyond this rights-based goal, increasing indigenous peoples’ self-determination over their development has been shown to have significant practical benefits across a range of indicators, that is, indigenous peoples who are able to pursue their own development priorities and strategies fare better than those who cannot. Further discussion about the need for self-determined development for indigenous peoples, as well as the identification of ongoing obstacles and advancements made in this regard, is included in section IV, below.

19.     The principles of self-determination and non-discrimination permeate the broad range of economic and social rights. For example, in the context of health, the practical implications of these general principles are that health services should not only aim at closing the gaps in health outcomes between indigenous and
non-indigenous individuals, but also incorporate and strengthen the traditional medicine and health practices of indigenous peoples. In the area of education, general and contextualized standards guarantee the equal rights of indigenous individuals to education without discrimination, as well as the right to establish their own educational institutions, in conformity with their own convictions. In addition, the right to work enshrined in various instruments of general applicability encompasses the right of indigenous peoples to pursue traditional occupations, such as sustainable pastoralism, hunting, gathering, fishing and shifting cultivation, as well as equal access to pursue such occupations, that is, indigenous peoples should enjoy “access to credit, market facilities, agricultural extension and skills training facilities on an equal footing with other parts of the population”.[1]

20.     The Special Rapporteur notes that cultural rights, in particular, are of central significance to indigenous peoples and almost by definition embody the corollary rights to non-discrimination and, especially, to self-determination. Furthermore, cultural rights are part and parcel of a range of other substantive rights for indigenous peoples. The Committee on Economic, Social and Cultural Rights interprets “culture” as a broad, inclusive concept encompassing all manifestations of human existence and that it “shapes and mirrors the values of well-being and the economic, social and political life of individuals, groups of individuals and communities”.[2]

21.     The Committee notes that the right “to take part in” culture life enshrined in article 15(1) of the International Covenant on Economic, Social and Cultural Rights covers, inter alia, the individual and collective rights to: choose one’s own identity; engage in one’s own cultural practices; speak the language of one’s choice; know and understand one’s own culture and that of others; receive quality education and training with due regard for cultural identity; follow a way of life associated with the use of cultural goods and resources such as land, water, biodiversity, language or specific institutions; and be involved in creating the spiritual, material, intellectual and emotional expressions of the community.[3]

22.     The Special Rapporteur finds that such an inclusive understanding of the right to take part in cultural life is consonant with the holistic worldview of indigenous peoples. She reaffirms that the right to cultural life, in the context of indigenous peoples, is underpinned by the right to self-determination as an indispensable condition for the continued existence of their cultural life.

             C.    The relevance of effective and special measures to achieve indigenous peoples’ economic, social and cultural rights

23.     A number of countries in which indigenous peoples live face enormous development challenges, and clearly indigenous peoples may be one group among many within a country experiencing difficulties in this regard. Nevertheless, indigenous peoples face distinct challenges, and measures to address social and economic disparities must be differentiated from measures targeting other disadvantaged groups.

24.     In order to overcome situations of discrimination, international human rights standards generally provide for the adoption of positive or special measures to ensure effective and substantial equality. With this in mind, the Declaration was premised on the concern that indigenous peoples have suffered from injustices that prevent them from exercising their right to development in accordance with their own needs and interests. Hence, the Declaration has essentially a remedial purpose, and, in the words of the previous Special Rapporteur, “aims at repairing the ongoing consequences of the historical denial of the right to self-determination and other basic human rights affirmed in international instruments of general applicability”.[4]

25.     The Declaration, in particular with regard to economic, social and cultural rights, points out in numerous articles the need for States to adopt “effective” or “specific” measures or to take “necessary steps” to overcome discrimination and ensure the progressive achievement of these rights. In general, article 21(2) stipulates that “States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their [indigenous peoples’] economic and social conditions”. More specifically, the Declaration calls for: measures to: safeguard the cultural values and identity of indigenous peoples and prevent their forced assimilation or integration (article 8(2)); protection of their right to revitalize, use, develop and transmit their cultural heritage (article 13(1 and 2)); ensured access to education in their own culture and their own language (article 14); protection of indigenous children from economic exploitation and child labour (article 17(2)); protection of indigenous women and children against violence and discrimination (article 22(2)); and the right to achieve the highest attainable standard of physical and mental health (article 24(2)).

26.     From her own experience, the Special Rapporteur reported on concerns expressed that such affirmative measures to address the particular situation of indigenous peoples would constitute an act of discrimination against other sectors of society. In that regard, the Special Rapporteur finds it useful to draw attention to the comprehensive body of authoritative interpretation of human rights standards, which explain the non-discriminatory nature of special measures, if these are adopted specifically to overcome discrimination.

27.     For example, the Committee on the Elimination of Racial Discrimination, in its general recommendation No. 32, underlines that the “term “non-discrimination” does not signify the necessity of uniform treatment when there are significant differences in situation between one person or group and another, in other words, if there is an objective and reasonable justification for differential treatment. To treat persons or groups whose situations are objectively different in an equal manner would constitute discrimination in effect, as would the unequal treatment of persons whose situations are objectively the same.[5] The Committee thereby concluded that “special measures are not an exception to the principle of non-discrimination but are integral to its meaning”.[6]

28.     Following this reasoning, the Special Rapporteur emphasizes that there can be no doubt about the pertinence and necessity of adopting special measures to overcome discrimination against indigenous peoples, which is reflected in their marginalized situation of in all parts of the world, and to assist them in progressively achieving their economic, social and cultural rights.

29.     Given that non-discrimination in the context of indigenous peoples has both an individual and a collective dimension, and that non-discrimination and self-determination are complementary and intertwined principles that permeate economic, cultural and social rights as they apply to indigenous peoples, special measures should, accordingly, not only address the socioeconomic gaps between the indigenous and non-indigenous sectors of society but also remove discriminatory barriers to the exercise of their right to self-determined development and cultural integrity.

         IV.   Lessons learned from current efforts to achieve the economic, social and cultural rights of indigenous peoples

             A.    Failure of the Millennium Development Goals to embody human rights obligations, including the rights of indigenous peoples

30.     While the rights of indigenous peoples are clearly defined by the Declaration on the Rights of Indigenous Peoples, and an increasing body of knowledge regarding its implications and operationalization is being developed, huge implementation challenges remain, including in the context of economic, social and cultural rights.

31.     This implementation gap is sadly reflected by the failure of the international community to use the Millennium Development Goals as a vehicle to overcome discrimination and achieve substantial equality for indigenous peoples in the context of their development. The eight quantifiable Goals, which were to be achieved by 2015, were derived from the Millennium Declaration, adopted by the General Assembly in September 2000. Indigenous peoples, and civil society in general, were not formally involved in the formulation of the Goals and neither the Goals nor the related targets or indicators have any specific reference to the situation of indigenous peoples.

32.     This omission raised the alarm both among indigenous peoples and within the United Nations system. In 2005, the Inter-Agency Support Group on Indigenous Issues, which comprises more than 30 United Nations agencies, funds and programmes and international organizations, expressed its concern that this omission of indigenous peoples “… may in fact adversely impact their communities by deepening the discrimination faced by indigenous peoples and by accelerating the exploitative use of their land and resources in the name of progress and economic development”.[7] Furthermore, the United Nations Permanent Forum on Indigenous Issues dedicated its 2005 and 2006 sessions to a thorough discussion of the Millennium Development Goals, and issued a comprehensive set of detailed recommendations to States, the United Nations system and indigenous peoples in order to make the strategies adopted to achieve the Goals responsive to the needs and aspirations of indigenous peoples.

33.     With only one year remaining to achieve the Millennium Development Goals, and in spite of the concerted efforts by numerous actors at a global scale, the Special Rapporteur concludes that many of the concerns expressed with regard to the Goals were sadly confirmed. Based on all available data at the country level regarding the social and economic situation of indigenous peoples, it is evident that the Goals did not fundamentally address or resolve the socially and economically disadvantaged position of indigenous peoples.

34.     As the world prepares to define the next generation of sustainable development goals and the post-2015 development agenda, to be achieved by 2030, the Special Rapporteur highlights the need to look back at the experiences generated in the context of the framework and implementation of the Millennium Development Goals in order to avoid repeating mistakes, learn from constructive approaches and ensure that the next generation of global development goals and related targets and indicators are developed on the basis of an informed background.

             B.    Obstacles and advancements in achieving economic, social and cultural rights for indigenous peoples

35.     The efforts to reach the Millennium Development Goals, along with other recent development efforts to progressively achieve economic, social and cultural rights, have revealed a series of weaknesses related to the scope, the focus, governance and operational modalities of such efforts, but have also provided promising examples and experiences, which can be used to inspire future efforts. A non-exhaustive list of main obstacles and advancements to the full realization of the rights of indigenous peoples in the context of development are reviewed in this section. It is necessary to take stock of these obstacles and to develop measures to overcome them as part of efforts to achieve sustainable development in the context of the post-2015 global development agenda.

                            Self-determined development

36.     Complementary to the challenge of ensuring substantial equality for indigenous people with regard to common socioeconomic indicators is the need to ensure equality for indigenous peoples with regard to their rights to develop priorities and strategies for their self-determined development, as enshrined in the Declaration on the Rights of Indigenous Peoples (article 23) and ILO Convention No. 169 (article 7(1)). History is full of examples of development interventions that have either failed or undermined the institutions, resources and cultures of indigenous peoples. These interventions tended to be preconceived in an evolutionist and a narrowly defined monetary and economic growth-oriented development tradition, which ignored the traditional knowledge, cultural and natural resources and concepts of well-being of indigenous peoples.

37.     One such example is the undervaluing of the traditional livelihoods and occupations of indigenous peoples, such as traditional fishing practices, hunting and gathering, pastoralism and shifting cultivation. In all parts of the world, indigenous peoples who are engaged in such sustainable but non-sedentary subsistence activities face overwhelming threats to their collective rights to lands, territories and resources, which form the basis of their livelihoods as well as their culture and identity. As observed by the Inter-Agency Support Group on Indigenous Issues
“… national development policies often consider traditional livelihood activities as no longer relevant and sometimes seek to discourage them, even in the absence of viable alternatives”.[8] The Special Rapporteur observes that this situation persists despite the fact that the dominant development strategies have led to immense challenges related to the adverse effects of climate change, loss of biodiversity, environmental degradation, financial instability, increasing inequalities and unemployment and social crises in many countries.

38.     In contrast, indigenous peoples’ traditional knowledge and practices for sustainable low-carbon development, ecosystem management, biodiversity conservation and climate change adaptation provide important resources not only for indigenous communities but also for the global community, and there is ample evidence supporting this assertion. Studies show that: pastoral systems based on mobility and diversity of livestock are supportive of a healthy ecosystem and are complementary to wildlife conservation; there is a considerable overlap between indigenous peoples’ territories and areas of high biological diversity; and a considerable part of the global biodiversity survives within indigenous and community-conserved areas. Hence, strengthening indigenous peoples’ own strategies for sustainable development is not only key to achieving their economic, social and cultural rights, it is also an indispensable element in global efforts to achieve sustainable development.

39.     What is more, according to various studies, programmes that maximize indigenous self-determination tend to perform better than those controlled by the State or by other external actors. The Harvard Project on American Indian Economic Development has diligently documented numerous examples of successful indigenous-run development programmes and has concluded that when Native nations make their own decisions about what development approaches to take, they consistently outperform external decision makers — on matters as diverse as governmental form, natural resource management, economic development, health care and social service provision.[9] Thus, for sustainable development to take root, it is necessary to promote the conditions under which indigenous decision-making is maximized and to ensure that development models and programmes targeted towards indigenous peoples are grounded in their own cultures and ways of doing things, as discussed below.

40.     Nevertheless, as described by the previous Special Rapporteur, the externally designed and managed model for development for indigenous peoples, especially in the area of extractive resources, is still the “standard scenario”.[10] This has led to a common perception among indigenous peoples that “no apparent positive impact is to be had from these operations, which are seen more as a top-down imposition of decisions taken in a collusion of State and corporate interests than the result of negotiated decisions in which their communities are not directly involved”.[11] To counter this situation, the former Special Rapporteur pointed out the need for States and business enterprises to reverse the standard scenario and to build new models of partnership for resource extraction and development, which should preferably be conceived through indigenous peoples’ own initiatives and enterprises.¹⁰

41.     The Special Rapporteur notes that, at a minimum, third-party development initiatives should seek to establish rights-centred and equitable agreements and partnerships with indigenous peoples. Such partnerships are most likely to be successful if they: (a) are developed within the framework of State regulatory regimes that adequately protect indigenous peoples’ rights, including the extraterritorial activities of private companies; (b) ensure participation of indigenous peoples and respect for their rights in strategic State planning from the national to the local levels for resource extraction and development; (c) ensure that companies comply with their responsibility to respect indigenous peoples’ rights and perform related due diligence to assess and avoid any adverse impact; and
(d) ensure fair and adequate consultation and negotiation procedures, aimed at obtaining free, prior and informed consent.

42.     In this context, the Special Rapporteur notes with interest the adoption by the Human Rights Council, on 26 June 2014, of resolution 26/9, entitled “Elaboration of an international legally binding instrument on Transnational Corporations and other Business Enterprises with respect to Human Rights”. By its resolution 26/9, the Council decided to establish an open-ended intergovernmental working group mandated “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”.

43.     This could be a much needed step towards ensuring that gross human rights violations against indigenous peoples that involve transnational corporations and business enterprises become a thing of the past, thereby paving the way for the construction of new mutually beneficial partnerships between businesses and indigenous peoples.

44.     The Special Rapporteur recommends that the participation of indigenous representatives be ensured and supported as part of the process of establishing the open-ended intergovernmental working group. The Special Rapporteur looks forward to contributing to this process in any way she can, including by collaborating closely with the working group and by facilitating dialogue among the parties, if requested.

45.     At the same time, the Special Rapporteur also expects that the implementation of the above-mentioned resolution will not derail the work already carried out to implement the Guiding Principles on Business and Human Rights that has taken place over the past three years, including work carried out by the Working Group on the issue of human rights and transnational corporations and other business enterprises and the Forum on Business and Human Rights. In this context, there has been some progress in terms of raising the concerns of indigenous peoples, especially in relation to extractive industries. The participation of indigenous representatives in the processes of the Working Group and the Forum should continue and financial support should be provided for this purpose.

46.     The Special Rapporteur also emphasizes the importance of ensuring that the sustainable development goals and the post-2015 development agenda are inclusive and reflective of indigenous peoples’ development aspirations, bringing together economic, social, cultural, environmental and climatic concerns, to be addressed in an integrated manner.

                            Invisibility of the situation of indigenous peoples and disaggregated data

47.     The Special Rapporteur is deeply concerned that the particular situation of indigenous peoples often remains invisible within national statistics. This is true in many developing countries, which often have weak institutional capacities for data collection. Further complicating this situation is the fact that in many of these countries, particularly in Africa and Asia, the formal identification and recognition of indigenous peoples is still pending, and disaggregation of data based on ethnicity may be considered, for various reasons, to be controversial. Given the importance of this issue, the Permanent Forum on Indigenous Issues has made it an ongoing area of focus, and has issued numerous recommendations for States, indigenous organizations and United Nations agencies, in particular the Statistics Division of the Department of Economic and Social Affairs, to collaborate on data disaggregation and collection.[12]

48.     The existence of relevant information is a vital precondition for devising adequate policy responses for addressing inequalities and for monitoring the effectiveness of measures to overcome discrimination, both within and between countries, as well as for identifying additional gender-based discrimination. In this context, the Special Rapporteur commends the efforts of the Economic Commission on Latin America and the Caribbean (ECLAC) to “democratize information”. With the support of a number of United Nations agencies, donor agencies and private funders, the Commission has established a comprehensive database, which provides sociodemographic data on indigenous peoples and Afro-descendants in the region, including data disaggregated by sex and age, as well as data on internal migration, health, youth and the territorial distribution of inequalities.[13] The basis of much of this impressive work is the inclusion by most countries in Latin America of an “indigenous identifier” into their 2000 census round, thus building data through the self-identification of individuals as being a member of an indigenous community.[14]

49.     The Special Rapporteur notes that some individual countries have made similar progress with regard to disaggregation of data in their population and housing censuses, examples of which are noted throughout the specific country reports of the previous Special Rapporteurs. This information has been and will be invaluable as a basic requirement for monitoring the impact of the upcoming sustainable development goals.

50.     However, one limitation of the disaggregation of data collected against common socioeconomic indicators is that such data may essentially serve to monitor discrimination against indigenous individuals in terms of their access to and achievement of social and economic rights while providing little information on the range of attributes of these rights pertaining to the right to self-determination. For example, disaggregated data may show a gap in educational outcomes, but will not supply information as to whether the education provided was culturally appropriate, or whether the student was able to learn in his or her own language, for example. Likewise, a simple registration of increased income may be read as indicating positive progress, even in situations where indigenous peoples have been forced to leave a more subsistence-oriented economy.

51.     At the most basic level, the indicators should assist with the detection of discrimination, inequality and exclusion, and should allow for comparisons to be made between indigenous peoples and other population groups. Furthermore, there is a need for specific indicators that capture essential aspects of self-determined development, such as status and trends in the development and use of indigenous languages, security of tenure with regard to lands, territories and resources and the recognition of indigenous customary law and autonomous governance institutions. Above all, it is essential that indigenous peoples participate in defining the issues to be addressed and the indicators used, and that indigenous peoples’ own views on well-being and their visions for the future are taken into account.

52.     The Special Rapporteur will continue her work on practical approaches to assessing progress in the realization of indigenous peoples’ rights, and she looks forward to collaborating with Governments, indigenous peoples, United Nations agencies and other interested parties in identifying good practices within this field, which should be reflected in the framework to monitor the forthcoming sustainable development goals.

                            Marginalization of indigenous peoples in developed countries

53.     National statistics in middle- and high-income countries may also hide the persistent social and economic marginalization of indigenous peoples. The previous Special Rapporteurs have highlighted this situation in their reports, for example, on the situation of indigenous peoples in Australia (A/HRC/15/37/Add.4), New Zealand (A/HRC/18/35/Add.4), the United States of America (A/HRC/21/47/Add.1) and Canada (A/HRC/27/52/Add.2). This concern has also been repeatedly raised by the Permanent Forum on Indigenous Issues. For example in the context of discussions related to the Millennium Development Goals, the Forum pointed out that indigenous peoples in developed countries “suffered from significant disparities in the enjoyment of economic, social and cultural rights. Such disparities tended to be masked at the international level owing to the lack of disaggregated data and the high level of enjoyment of such rights by the non-indigenous population compared with indigenous peoples”.[15]

54.     Another concern consistently raised by indigenous peoples in developed countries is that they generally have limited access to financial and technical assistance from international cooperation. Such cooperation is guaranteed in article 39 of the Declaration on the Rights of Indigenous Peoples, which states that indigenous peoples “have the right to have access to financial and technical assistance … through international cooperation”. However, given the rules for eligibility of official development assistance, which is largely based on gross national income, indigenous peoples living in developed countries are often denied such support.[16] One commendable example of how to overcome this limitation is presented in the Strategy for Danish Support to Indigenous Peoples, which stipulates that the general eligibility criteria for development aid recipients is waved in the context of indigenous peoples, as they often live in “poverty pockets,” even in countries that are not among the poorest.[17]

55.     The Special Rapporteur hopes that more agencies will find ways and means to assist indigenous peoples, as needed, in all parts of the world, and expresses her hope that the universality of the proposed sustainable development goals will contribute to highlighting and addressing existing inequalities in all counties across the globe.

56.     At the present time, in countries all around the world, there are numerous established programmes targeted at bettering the social and economic situations of indigenous peoples, many of which have demonstrated notable successes. The previous Special Rapporteurs have discussed some of these important governmental efforts to address the concerns of indigenous peoples relating to, inter alia, the establishment of mechanisms for consultation, languages and education, health, the administration of justice and economic development. However, they have also pointed out that, overall, more still needs to be done (see, for example, A/HRC/21/47/Add.1, paras. 67-71; A/HRC/18/35/Add.3, paras. 57-63).

                            Culturally appropriate social services

57.     An essential element of overcoming discrimination and achieving the economic, social and cultural rights of indigenous peoples is the design and delivery of adequate social services, particularly within the education and health sectors. As noted above and further here, culturally appropriate services are not only required by international human rights standards, especially as articulated in the Declaration on the Rights of Indigenous Peoples, they also are related to higher achievement outcomes. It can already be concluded that although enormous progress has been made with regard to the 2015 goals and targets, they will not be met for disadvantaged indigenous peoples, unless governments direct more attention — and resources — towards them.

58.     Given their unique cultures and ways of life, it must also be noted that social and economic development for indigenous peoples may be different from other sectors of the population. Hence, development strategies must take into account, inter alia, indigenous peoples’ languages, traditions, livelihood strategies and autonomous institutions. This is fundamental to the success of these measures. One way to ensure the accommodation of indigenous peoples’ cultures is by including them in the design, programming and implementation of development efforts. In this connection, throughout the Declaration on the Rights of Indigenous Peoples reference is made to the need for indigenous peoples to develop their own priorities for development and to be consulted and included in the process of crafting State programmes, as noted further below.

59.     One aspect of culturally appropriate social services involves providing such services to indigenous peoples in the places where they live. Many indigenous peoples live in rural and isolated areas, where there is often limited availability of medicines and teaching materials, low professional attainment on the part of the teachers and health workers locally deployed and poor school and clinic infrastructure. Country reports by the previous Special Rapporteurs are replete with examples of these conditions. In parallel, an ever-increasing number of indigenous peoples live in urban areas where culturally appropriate services, such as mother tongue education, are often not available. Measures must be put in place to ensure that indigenous peoples can enjoy the same social and economic rights as other segments of the population, without having to sacrifice important aspects of their cultures or ways of life, including their attachment to their traditional lands and the transmission of their languages to future generations.

60.     In the context of education, the Declaration on the Rights of Indigenous Peoples underlines the importance for indigenous peoples of: education in their own languages; culturally appropriate methods of teaching and learning; and the reflection of their cultures, traditions, histories and aspirations in educational curricula (see articles 14(1) and 15(1)). However, in many places, prejudices and negative stereotyping of indigenous culture and identity remain a major challenge, and indigenous peoples face discrimination in schools, both from other students and from teachers. The United Nations Educational, Scientific and Cultural Organization (UNESCO) has carried out an exhaustive investigation into this issue, the results of which are contained in its 2010 Education for All Global Monitoring Report: Reaching the marginalized. The report affirms that “[s]tigmatization is a potent source of marginalization that children bring with them to the classroom. From Aboriginals in Australia to the indigenous people of Latin America, failure to provide home language instruction has often been part of a wider process of cultural subordination and social discrimination”.[18]

61.     In general, disadvantages do not exist in isolation and there are numerous examples that demonstrate how poverty and gender discrimination contribute to exacerbating educational deprivation among indigenous peoples throughout the world. The UNESCO report identifies the following measures to overcome marginalization in education, all of which are valid options for addressing the problems encountered by indigenous peoples: setting national equity-based targets, which focus on marginalized sections of the population; gathering disaggregated data to identify marginalized groups and monitor their progress; identifying the drivers of marginalization for specific groups; adopting an integrated policy approach that addresses interlocking causes of disadvantage, within education and beyond, including by improving affordability and accessibility, strengthening the learning environment; and honouring and expanding entitlements and opportunities.[19]

62.     In the area of health, persisting inequities in health status is an unfortunate commonality for all of the world’s indigenous peoples, with gaps not only in health status, but also in many determinants of health. Women and children face additional vulnerabilities. These are rooted in situations of extreme poverty, lack of access to education and social services, destruction of indigenous economies and sociopolitical structures, forced displacement, armed conflict and loss and degradation of customary lands and resources, all of which are further compounded by structural racism and discrimination.

63.     The Declaration on the Rights of Indigenous Peoples emphasizes that indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals (article 24(1)). The importance of such practices is reaffirmed by the Pan American Health Organization (PAHO) and the World Health Organization (WHO), which estimate that 80 per cent of the population in developing countries relies on traditional healing systems as their primary source of care.[20] This number undoubtedly includes many indigenous people, who often rely on a combination of traditional and western medicines and practices, and points to the need for developing inclusive health strategies in partnership with indigenous peoples.

64.     Within the United Nations system, PAHO, which is the specialized health agency of the inter-American system and the Regional Office of WHO for the Americas, has been the champion in promoting complementarity between traditional and western health systems and establishing alliances with traditional healers in order to incorporate their perspectives, medicines and therapies into national health systems. PAHO has stressed the need to develop comprehensive health strategies that reposition health and health services, taking into account structural social determinants, and that promote the collective human rights of indigenous peoples, eliminate discrimination and redistribute political and economic power towards a more diverse and equitable world.[21]

65.     The Special Rapporteur agrees with these calls for broad, multifaceted and contextualized legal, policy and programme responses to overcoming discrimination against indigenous peoples and to furthering their self-determination with regard to health and education. This requires coordinated and systematic actions by States, actions which acknowledge and conceptualize the indivisibility and interdependence of human rights and also correspond to indigenous peoples’ holistic and integrated perceptions of development and well-being.

                            Improving indigenous peoples’ conditions of work

66.     Labour rights constitute a crucial yet often overlooked element of indigenous peoples’ economic rights, which is ironic given that initially it was the exploitation of indigenous workers that raised international concerns about the situation of indigenous peoples and led to the adoption of the first international instrument on their rights, ILO Convention No. 107 of 1957. All available data indicates that the exploitation of and discrimination against indigenous workers persist today.[22] Large numbers of indigenous peoples remain excluded from vocational training, employment opportunities and social protection. Many are trapped in the informal economy, often in precarious and low-paid jobs.

67.     Pervasive discrimination against indigenous peoples in many places results in the failure to respect the value of skills related to traditional knowledge and indigenous identity, for example the ability to speak an indigenous language. In addition to the general discrimination against indigenous peoples in employment and occupations, they are particularly vulnerable to the most extreme forms of labour exploitation, such as hazardous labour conditions, child labour and forced labour. The latter includes: the bonded labour of indigenous peoples in several countries in South Asia; slavery-like practices in parts of Africa; and debt-bondage in parts of Latin America. Indigenous women and children face additional risks related to trafficking and sexual exploitation, as well as exploitation in the context of domestic work.

68.     Some progress has been made with regard to documenting the gross violations of indigenous peoples’ rights in the context of labour exploitation, including through forced and child labour,[23] and the ILO supervisory bodies have increasingly been addressing the labour conditions of indigenous workers under the relevant conventions.[24] However, this is an area where the Special Rapporteur sees the need for additional special measures to protect the most vulnerable individuals and groups. Such efforts could include the collaborative development of comprehensive action plans between Governments, indigenous organizations, workers’ and employers’ organizations and others; information dissemination and awareness raising in indigenous languages; economic empowerment of particularly vulnerable groups; and support to victims.

69.     The Special Rapporteur draws attention to the precarious situation of the numerous indigenous women, particularly from Latin America and Asia, who serve as domestic workers, either in their home countries or as migrant workers. According to ILO estimates, there are a minimum of 53 million adult domestic workers in the world; 83 per cent of whom are women.[25] It is unknown what percentage indigenous women constitute, but the sparse data available indicates that in some countries and regions they may actually constitute the majority. These women often face deplorable working conditions, labour exploitation and human rights abuses, frequently without legal recourse to remedy. In this context, the Special Rapporteur notes that the Domestic Workers Convention (ILO Convention No. 189) entered into force in September 2013. The Convention aims at extending basic labour rights to domestic workers around the globe and can be a potentially important instrument for indigenous women.

70.     The Special Rapporteur expresses her willingness to collaborate with ratifying countries, indigenous organizations, in particular women’s organizations, ILO and others to ensure that this instrument is better known and implemented in partnership with indigenous peoples, thereby hopefully making a concrete difference in the lives of the many indigenous domestic workers.

                            The situation of indigenous women

71.     When looking at available socioeconomic data disaggregated by ethnicity and gender, there is no doubt that indigenous women experience particular and interrelated forms of discrimination because of their indigenous identity and their gender. Gender-based discrimination is a sad reality in most countries, and it is also found within some indigenous societies where, for example, women may not traditionally have participated in governance institutions or where girls are not encouraged to study. In short, many indigenous women still face additional gender-based discrimination, which leads to disadvantages, marginalization and, in extreme cases, to violence, physical mutilation, trafficking, prostitution and restricted access to justice. On the other hand, there is ample documentation of the strong and crucial roles played by indigenous women in many areas of life, including food production, biodiversity conservation, climate change adaptation, transmission of languages, culture and knowledge, conflict resolution and peacekeeping.

72.     The Special Rapporteur notes that there are still voices that tend to diminish the debate about indigenous women either by regarding their marginalization and the violation of their rights as an effect of “culture and tradition,” or by portraying a false conflict or divide between the collective rights of indigenous peoples and the individual rights of indigenous women. The Special Rapporteur strongly opposes such views and underlines the complementary and mutually reinforcing character of collective and individual rights. The fulfilment of the rights of individual
indigenous men and women depends on the realization of their collective rights to self-determination, including culture, language, lands and territories. Likewise, indigenous societies must be guided by universal human rights as they further strengthen and develop their governance institutions, their customs and traditions, with the full participation of indigenous women.

73.     In this context, the Special Rapporteur, in agreement with the Committee on Economic, Social and Cultural Rights, emphasizes that both the Declaration on the Rights of Indigenous Peoples and the International Covenant on Economic, Social and Cultural Rights must be interpreted within the broader framework of human rights and fundamental freedoms.[26] This implies that cultural rights cannot be invoked to limit the scope of — or to infringe upon — internationally human rights. This principle is explicitly upheld in article 34 of the Declaration, which stipulates that “Indigenous peoples have the right to promote, develop and maintain their (…) juridical systems or customs, in accordance with international human rights standards”.

74.     The Special Rapporteur welcomes the emergence and proliferation of indigenous women’s organizations and networks in all parts of the world at the local, national, regional and international levels.[27] These organizations are dynamic and have, over a relatively short period of time, given a strong and forceful voice to the concerns, priorities and aspirations of indigenous women, both with regard to their individual rights as well as to their rights as members of indigenous collectives.

75.     As also noted in her first report to the Human Rights Council (A/HRC/27/52), during the term of her mandate, the Special Rapporteur will place special emphasis on the issues facing indigenous women, and will make a special effort to work closely with indigenous women to make sure that their concerns are consistently addressed in her work. In these efforts, she will strive to complement the work of other mandate holders and entities active in this field, including the Special Rapporteur on violence against women, the Working Group on Discrimination against Women in Law and Practice and the Committee on the Elimination of Discrimination against Women.

                            Governance

76.     It is necessary for States to consult with indigenous peoples and ensure their participation before adopting legislative or administrative measures or projects that affect them. Concerns in this regard have been consistently raised in the context of the strategies and programmes designed to reach the Millennium Development Goals.

77.     A first step in establishing adequate development plans and programmes, in the context of the Millennium Development Goals and beyond, is to assess needs and identify priorities and to develop strategic action plans with goals and frames for implementation, together with indigenous peoples. Planning that takes into account and incorporates steps to implement indigenous peoples’ rights can also take place in the context of broader education, health, housing, poverty reduction and resource development strategies (see A/HRC/24/41, paras. 49-51) as well as in other areas. Involving indigenous peoples at the outset in planning and throughout implementation phases, which would go a long way towards facilitating the implementation of core development goals with respect to indigenous peoples, is still a step that is often overlooked.

78.     A 2008 desk review of country reports on the achievement of the Millennium Development Goals, undertaken by the secretariat of the United Nations Permanent Forum on Indigenous Issues, concluded that: 80 per cent of the reports inadequately addressed indigenous issues; none of the reports consistently included disaggregated data; and none of the reports were prepared in consultation with indigenous peoples.[28] At the international level, similar reviews of various common country assessments and United Nations Development Assistance Frameworks, which constitute the main framework for United Nations system development assistance at the country level, also concluded that indigenous peoples had little participation and that most frameworks did not provide for disaggregated data and benchmarks related to indigenous peoples’ development.[29]

79.     The implications of this omission are simple but far-reaching: if indigenous peoples’ needs and concerns are not reflected in these overall frameworks established by governments and supported by the United Nations system and other bilateral and multilateral donors, they may simply be excluded from development efforts and their rights may even be further undermined.

80.     On the positive side, the Special Rapporteur is aware of numerous examples of inclusive and collaborative development efforts in support of indigenous peoples. These range from large-scale programmes to demarcate indigenous lands and develop intercultural and bilingual education at the national level, to small projects directly implemented by indigenous communities in response to their own priorities. Some countries have also advanced in building regular and institutionalized mechanisms for consultation and participation, which ensure indigenous peoples’ influence in the strategic planning and implementation of development strategies and programmes.

81.     Within the United Nations system, there have been some important examples of building platforms for dialogue at the country-level between indigenous peoples and the entities of the system. In this context, the Special Rapporteur underlines that States as well as United Nations agencies, in accordance with articles 41 and 42 of the Declaration on the Rights of Indigenous Peoples and the broader range of human rights instruments, must respect right of indigenous peoples to participate in and be consulted about development interventions that affect them.

82.     The design of the global post-2015 development agenda calls for renewed efforts to establish adequate inclusive governance mechanisms for consultation and participation at the national and international levels as a solid bulwark against imposed developments and a prerequisite for sustainable development outcomes. These basic governance requirements should be solidly reflected in the framework to achieve the sustainable development goals.

          V.   Conclusions and recommendations towards the establishment of the sustainable development goals

83.     Engaging in partnerships with indigenous peoples to define strategies to progressively achieve their economic, social and cultural rights is not only a duty of States under the International Covenant on Economic, Social and Cultural Rights and the Declaration on the Rights of Indigenous Peoples, it is also an invaluable contribution to strengthening the diversity of sustainable livelihood systems and economies that include both market, non-market and other approaches for a more equitable and sustainable sharing of wealth and resources.

84.     In concluding her first report to the General Assembly, the Special Rapporteur underlines the unique opportunity that the global community has to use the design, implementation and monitoring processes related to the sustainable development goals to address the persistent discrimination against indigenous peoples, as individuals and as collectives, and with regard to both access to and adequacy of development intervention.

85.     Overcoming discrimination against indigenous peoples, and indigenous women in particular, will require concerted efforts and, in many cases, special measures. The Special Rapporteur expresses her hope that the global community is ready to take the necessary steps to end the historical injustices committed against indigenous peoples, and provides the following recommendations to that effect:

           (a)     The processes to define, implement and monitor the sustainable development goals should be used as a vehicle to address the aspirations of indigenous peoples for self-determined development, and to achieve equality in development outcomes. This will require the full and effective participation of indigenous peoples in the definition, implementation and monitoring of the goals at both the international and national levels, including the establishment of regular mechanisms for consultation and participation;

           (b)     The universality of the proposed sustainable development goals is a unique opportunity to highlight and address existing inequalities between the indigenous and non-indigenous sectors of the population in all countries across the globe. In order to monitor discrimination, recurrent data gathering processes, such as population and housing censuses, should disaggregate data, using self-identification as a key criterion for the identification of indigenous peoples. Additional specific indicators and related data-gathering processes should be developed to monitor essential aspects of indigenous peoples’ self-determined development, such as security of tenure with regard to lands, territories and natural resources;

           (c)     States should adopt broad measures to ensure respect for indigenous peoples’ labour rights, as well as special measures to address the situation of groups that are most vulnerable to forced labour, child labour, sexual exploitation and trafficking;

           (d)     The disadvantages faced by indigenous peoples with regard to education and health should be addressed by identifying the multiple drivers of marginalization, adopting integrated policy approaches that address interlocking causes of disadvantages, setting specific national targets for indigenous peoples’ health and education outcomes and gathering disaggregated and specific data to monitor progress;

           (e)     Indigenous peoples should be included in the design and delivery of adequate social services, particularly within the education and health sectors, with the understanding that culturally appropriate services are not only required by international human rights standards but are also are related to higher achievement outcomes.