Seeking for More Effective Ways of Implementing the UN Declaration on the Rights of Indigenous Peoples
Distinguished members of the Expert Mechanism,
Excellencies,
Distinguished representatives of indigenous peoples
Ladies and gentlemen,
I am honoured to present to this 9th session of the EMRIP an update on my activities since I reported to you last year. It is also an opportunity to share my reflections on how the UN Declaration on the Rights of Indigenous Peoples can be implemented in a better manner at all levels. Sharing these activities and reflections with you is a good tradition which has been established in this body because this promotes better coordination and knowledge sharing between our mechanisms.
This Agenda Item 8, under which I am making this report, is important because next year will be the 10th anniversary of the adoption of the Declaration by the UN General Assembly in 13 September 2016. May mandate contained in A/HRC/RES/15/14 of October 2010 mainly revolves around assessing how the rights of indigenous peoples contained in the UN Declaration on the Rights of Indigenous Peoples, are protected, respected and fulfilled. My mandate specifically asks me to;
a) Examine ways and means of overcoming existing obstacles to the full and effective protection of the rights of indigenous peoples and to exchange and promote best practices;
b) To gather, request, receive and exchange information and communications from all relevant sources, including Governments, indigenous peoples and their communities and organizations, on alleged violations of the rights of indigenous peoples;
(c) To formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations of the rights of indigenous peoples;
(g) To promote the United Nations Declaration on the Rights of Indigenous Peoples and international instruments relevant to the advancement of the rights of indigenous peoples,
In addition to these, I am asked to;
(d) To work in close cooperation and coordination with other special procedures and subsidiary organs of the Council, in particular with the Expert Mechanism on the Rights of Indigenous Peoples, relevant United Nations bodies, the treaty bodies and regional human rights organizations
I am grateful to the OHCHR and the EMRIP for consistently inviting me to be present in its sessions and also in most of the Expert Group Meetings it organizes.
The opportunity to see the situation of indigenous peoples at the country and community levels through my official and working country visits is one of the most gratifying aspects of my mandate. This allows me to understand better the obstacles faced in the implementation of the UNDRIP and to see good practices as well. Additionally, I learn more about indigenous peoples’ situations from the letters I receive regarding alleged violations of indigenous peoples’ rights. On the basis of these ì send communications to Member States and I engage with them constructively. I would like to thank all the States who have responded to my communications.
In my country reports I make recommendations not only to the Governments but also to the indigenous peoples as well as to relevant UN bodies and agencies. These are all aimed at strengthening good practices, identifying areas of concern, and improving the human rights of indigenous peoples.
Country Visits
Since I reported to you last year I have carried out 3 official country visits to Sapmi (August 2015), Honduras (Nov. 2015) and most recently Brazil (March 2016). The reports of these visits will be presented to the Human Rights Council in September of this year. However, in each of these visits I already made my end of mission statements which presented some of my preliminary observations from the visits. What I am presenting here is public information contained in the end of mission statements. These can be found in my websites; ohchr.org and unsr.vtaulicorpuz.org.
My visits to Brazil and Sapmi were follow up visits as my predecessor, James Anaya, visited these earlier. At the outset, let me thank the Governments of Honduras, Norway, Sweden and Finland, the Sami Parliamentary Council and the Federal Government of Brazil for inviting me to undertake these country visits.
Before I summarize the highlights of my visits within the period June 2014 to the present I would like to talk about my country report on Paraguay presented to the Human Rights Council in September 2015. This was received very well by the Government of Paraguay and this year, I am happy to report that one of my recommendations was implemented.
This is related to land of the Mbya Guarani in the Cheiro Ara Poty which took almost 26 years before it was finally returned to them. The Sommerfeld Komitee who were given a title to this land by an earlier government, did not give this back despite the expropriation order by the government in 1989 after the Mbyá Guaraní filed their case in 1981. Following a series of claims and appeals before the courts which were won by INDI (Instituto Paraguayo del Indígena) and the community, Sommerfeld Komitee did not withdraw the funds deposited by INDI to pay for the land. As a result, no transfer agreement has been signed and it has not been possible to transfer title to the community.
In my report I recommended that the Government take all necessary measures to finally give effect to the conveyance of the lands awarded to the Mbyá Guaraní. This year I received a report that the company finally accepted the payment and returned the land to the Mbya Guarani.
In August 2015, I carried out a follow up visit to examine the situation of Sami in Norway, Sweden and Finland. One of the concerns I highlighted at my end of mission report is on the land rights situation of the Sami people. In the three countries, the increased drive to extract and develop minerals and set up renewable energy projects in Sápmi is one of the threats against the realization of the rights of the Sami.
The next visit I did was in Honduras from 2nd to 10th of November 2015. I also noted that a fundamental problem faced by indigenous peoples was the lack of full recognition, protection and enjoyment of their rights to ancestral lands, territories and natural resources and the increasing violence against indigenous peoples. In this visit I had the opportunity to meet Berta Caceres and her two colleagues, Nelson Garcia and who have also been killed after her. She helped organize the visit to Rio Blanco, Intibuca where I met the Lenca people who were protesting against the Agua Zarca project. I also met with the representatives of DESA, the company building this project, in that visit.
The situation in Rio Blanco has drawn international attention due to the murder of Berta Caceres in 3 March 2016. She led protests against the Agua Zarca project. She is well known for her work and she received the Goldman Prize for this. Precautionary measures had been provided to her to protect her from many threats she has been receiving. Despite all these she was still killed. There is no question that her work in defense of the rights of the Lenca people, particularly with respect to this project, was the cause of her death. The ongoing investigations thus far have resulted in the arrest of five individuals that have been accused of the crime, some with direct links to the company developing the project. Unfortunately, we have still to hear news whether the government arrested the killers of the two COPINH activists who were killed after her. I will present the full report on Honduras in September 2016 before the Human Rights Council.
The recent visit I conducted in Brazil from 7-17 March 2016 coincided with the heightening of the political crisis in the country. I am grateful to the Federal Government of Brazil for inviting me and ensuring that I met many Ministers, the Presidents of the Federal Supreme Court and the Federal Superior Court, the State Prosecutors and some Legislators.
In my end of my mission I commended the government of Brazil for a number of measures and initiatives it has taken to ensure the realization of indigenous peoples' rights. However, I also expressed that in the eight years following the visit of my predecessor, there has been a disturbing absence of progress in relation to the resolution of long standing issues of key concern to indigenous peoples and to the implementation of the Special Rapporteur's recommendations. Instead, there have been extremely worrying regressions in the protection of indigenous peoples' rights, a trend which will continue to worsen unless decisive action is taken on the part of the government to reverse it.
I noted the serious challenges facing many indigenous peoples in the country. I would not enumerate these as these are contained in the report I made before the Permanent Forum’s 2016 session in May and the country report which I will be presented in September. In my end of mission statement I said that a perfect storm is looming in the horizon with the convergence of various developments that further entrench the interests and power of the economic and political elite to the detriment of the rights of indigenous peoples. The risk of ethnocidal effects in such contexts cannot be overlooked nor underestimated. It saddens me that the violent evictions of the Kaiowa Guarani people in Mato Grosso, some of which I visited, are still taking place as we speak.
Thematic Studies and Good Practices
In response to the recommendation of the World Conference on Indigenous Peoples’ Outcome Document1, I dedicated my second report to the Human Rights Council on the situation of indigenous women and girls (A/HRC/30/41).
I noted in this report that indigenous women experience a broad, multifaceted and complex spectrum of mutually reinforcing human rights abuses. That spectrum is influenced by multiple and intersecting forms of vulnerability, including patriarchal power structures; multiple forms of discrimination and marginalization, based on gender, class, ethnic origin and socioeconomic circumstances; and historical and current violations of the right to self- determination and control of resources.
I highlighted the links between the violation of indigenous peoples’ rights to lands, territories and resources to violence against indigenous women. Land appropriation is not gender neutral and indigenous women’s rights interact with violations of collective land rights. In indigenous communities where matriarchy and matrilineal practices exist, the loss of land will likewise undermine indigenous women’s status and roles. The gendered effects of those violations become manifest in situations where indigenous women lose their traditional livelihoods, such as food gathering, agricultural production, herding, among others, while compensation and jobs following land seizure tend to benefit male members of indigenous communities. The loss of land and exclusion of women can create vulnerability to abuse and violence, such as sexual violence, exploitation and trafficking. Additionally, the secondary effects of violations of land rights, such as loss of livelihood and ill health, often disproportionally impact women in their roles of caregivers and guardians of the local environment.
I was invited to two academic meetings which also dealt with the issue of indigenous women. I call these working visits as these also gave me opportunities to meet with indigenous peoples, government officials and foreign diplomats in the countries.
I visited Canada in February 2016 to attend an academic seminar on missing and murdered First Nations women which discussed the possible architecture of a national inquiry on this issue. The new Government finally expressed its willingness to set up an independent national inquiry on missing and murdered indigenous women which was recommended by my predecessor, James Anaya, and also by the IACHR and CEDAW.
This gave me a chance to speak with the Minister Caroline Bennet (Indian and Northern Affairs), Minister Jody Wilson Rabout (Justice), and the Minister of Social Welfare to share my views on how a national inquiry can be undertaken. They are the ones assigned to take the lead in designing the architecture of the national inquiry. I like to thank them for meeting with me in Ottawa and in also in New York during the session of the Permanent Forum. Again this is an example of good practice where Ministers reach out to my mandate to exchange views as well as discuss possible areas of collaboration.
The other working visit was in Guatemala. During the trial of the case filed by the Qiche Maya women of Sepur Zarco against the military men who raped them and made th’em sexual slaves. I had the privilege of attending the trial and also speaking with the 14 survivors. This case is emblematic of the situation of many indigenous women. I stressed in the paper I presented that indigenous women face various intersecting forms of discrimination which makes them vulnerable to sexual violence, sexual slavery and other grave human rights violations. Solutions to these problems must be based on an understanding of the histories, cultures and other specific circumstances that indigenous women face as members of indigenous peoples and communities. The damages suffered happen at an individual and collective level, and likewise, the measures that must be taken to remedy these violations need to have an individual and collective focus, depending on each circumstance.
The case against the two military men was won and this is a great victory in the continuing fight of indigenous women in Guatemala against the rape and killings done against them by the military during the war. This is a very inspiring development for indigenous women not just in the Guatemala but for those in the other countries who have and are still suffering from violence, sexual trafficking and sexual slavery. The lack of access to justice for indigenous women still remains as a big problem so victories like this will help in strengthening the fight for the right to access to justice.
In February 2016, I participated in an International seminar on Investigative Techniques and Indigenous issues in Bogota, Colombia. One of the objectives is to look at the experiences and challenges of indigenous justice and its interface with the application of criminal justice. This was through the invitation of the Fiscalia of the Government of Colombia.
In my presentation to this international seminar, I sought to encourage dialogue and cooperation between indigenous peoples and State authorities about the issue of justice administration. Any measure contemplated to resolve problems in the application of indigenous justice and to coordinate between indigenous and ordinary jurisdictions should use as points of reference the international standards related to indigenous peoples’ rights to self-determination, of their right to be consulted on all matters affecting them with a view to obtaining their free, prior and informed consent, as well as their rights and particular needs with respect to access to justice. The respect, promotion and strengthening of indigenous languages, cultures, and their own institutions should also be an integral part of mechanisms for facilitating indigenous peoples’ access to the national legal system and their own systems of justice.
I also stressed the need for a fluid intercultural dialogue between indigenous and State justice authorities in order to understand those matters that indigenous justice operators consider they should adjudicate, and accordingly recognize those faculties based on the circumstances of particular indigenous communities or peoples. This would provide flexibility in those cases where indigenous authorities consider that a particular matter should be adjudicated by ordinary justice authorities, as part of a process of intercultural coordination and cooperation. I noted that it is also necessary to hold as principle the ability of indigenous peoples’ justice systems to have a dynamic character that would allow them to evolve and adapt to future situations and contexts, in a manner that is consistent with their social, political and cultural precepts2.
When I presented my report before the General Assembly in October 2015, I discussed my analysis of international investment agreements and investment clauses of free trade regimes and their impacts on the rights of indigenous peoples. The report discussed a number of areas of concern, relating both to direct violations of the rights of indigenous peoples and the systemic impact of those regimes on their lives and communities.
Investment clauses of multilateral, regional and plurilateral free trade agreements and bilateral investment treaties (BITs) have actual and potential negative impacts on indigenous peoples’ rights. These include their rights to self-determination; free, prior and informed consent; lands, territories and resources; participation; and cultural rights and their right to development. In my report, I highlighted my observation that investors rights are highly protected by States in contrast to weak enforcement of human rights of indigenous peoples. I cited concrete cases of States being made to pay millions to billions of dollars because they stopped operations of some mining, water or energy companies. In some of these cases the projects were stopped because of sustained protests launched by indigenous peoples.
I would like to alert you that my forthcoming thematic report before the Human Rights Council will be on Investments again, as I decided to make this a running theme which I will address. For the General Assembly, I will be reporting on Conservation and Protected Areas and Indigenous Peoples Rights.
Participation in meetings of multilateral global and regional bodies
Between November and now, I was engaged in a number of activities across various continents. In mid-December 2015, I participated in a meeting organized by the African Working Group on Indigenous Populations in Cameroon. This is on the follow up to the Outcome Document on the World Conference on Indigenous Peoples. During the meeting, I emphasized the indivisibility, interdependence and interrelatedness of all human rights as well as their linkages to sustainable development and climate change. I shared the results of the 21st Conference of Parties of the UNFCCC held in Paris and which concluded with the Paris Agreement. I also shared the language on indigenous peoples contained in the 2030 Development Agenda.
I took part in the Paris Conference of Parties and together with the OHCHR and John Knox, the independent expert on rights to environment, we pushed for the inclusion of human rights in the Paris decisions. Due to our efforts and those of indigenous peoples who were there and the human rights NGOs, language which recognizes the need to address human rights, including indigenous peoples’ rights, in all climate change measure has been included.
In February 2016, I participated in a High Level Dialogue on World Bank draft standard on Indigenous Peoples in Addis Ababa, Ethiopia. The high-level dialogue organized by the World Bank on its draft environmental and social standard concerning Indigenous Peoples (ESS7) was organized to find common ground and acceptable formulations for draft ESS7 and centered on the use of the term Indigenous Peoples (and its perceived unsuitability for the African context) and on the references to the requirement to obtain free, prior and informed consent (FPIC) of Indigenous Peoples in certain circumstances. In relation to this, in May of this year, together with the Chair of the UNPFII and the EMRIP, we did a joint letter to the World Bank to express our concerns regarding the weakening of the safeguards and some language suggestions on how to remedy these. I was invited by the Nordic Trust Fund last month to speak before a meeting in the World Bank, which was attended by the WB staff and management, some governments and also with civil society organizations. I spoke on why indigenous peoples’ rights have to be safeguarded in Bank operations and programs.
In May 2016, I participated in a panel discussion organized by Columbia University in New York, USA, on Indigenous Peoples' Rights and Unreported Struggles: Conflict and Peace during the sidelines of my participation at the fifteenth session on the Permanent Forum on indigenous issues. Also in New York, I organized an expert meeting on the impact of investment clauses in bilateral and free trade agreements to indigenous peoples and a dialogue on impact of conservation activities on the rights of indigenous peoples which will be the subject of my report to the General Assembly in October of this year.
Conclusion
A main message which I reiterate in all my reports, my meetings with representatives of governments and multilateral bodies, is that indigenous peoples’ rights continue to be violated and there are still very few good practices which can be cited to this date. The challenge therefore is how we can all work together to ensure the effective implementation of the UNDRIP and the ILO Convention 169 where this is ratified. Solving some of the world’s problems can be further enhanced if indigenous peoples’ collective and individual human rights are respected, protected and fulfilled by States.
For example, research has shown that countries which respect the rights of indigenous peoples to own and manage their own forests are able to decrease their greenhouse gas emissions more than in national parks not managed by indigenous peoples. The effective implementation of the Declaration will contribute significantly in reducing conflicts in many countries, in addressing the key problems of climate change and biodiversity erosion and in promoting sustainable development and achieving the 2030 Development Agenda.
In my role as Special Rapporteur I will continue to monitor how the commitments of States to the various international human rights conventions and environmental and development agreements are being implemented. The UN Declaration on the Rights of Indigenous Peoples remains as the key normative standard which I will use in my mandate. For next year’s celebration of the 10th anniversary of the UNDRIP, I will make a report on my own evaluation on how this is being implemented. In our coordination meeting yesterday between the three mechanisms, we agreed to do this jointly. I hope each mechanism will look at the recommendations which emerged from their reports and see how these have been implemented. I believe this will be a substantive contribution to celebrate the 10th birthday of the UNDRIP.
Notes:
1. Paragraph 19 which invited the Human Rights Council to consider examining the causes and consequences of violence against indigenous women and girls, in consultation with the Special Rapporteur on violence against women, its causes and consequences and the Special Rapporteur on the rights of indigenous peoples.
2. A/HRC/15/37/Add.7, para. 10. 2.