Item 70(a): Rights of indigenous peoples
New York 12 October 2017
Mr. Chair,
Distinguished delegates, indigenous peoples’ representatives
Ladies and gentlemen,
In the thematic report which I am presenting today (A/72/186), I examine the progress made in the last decade to implement the United Nations Declaration on the Rights of Indigenous Peoples. 2017 marks the tenth anniversary of the adoption the Declaration in the General Assembly.
I feel a strong personal attachment and commitment to the Declaration. I participated in the negotiations of the Declaration already back in the mid-1980s and onwards. At the time of its adoption in 2007, I was the Chairperson of the Permanent Forum and had the honour to address the General Assembly on that historical occasion. In April this year, I also spoke in the General Assembly during the High Level Event commemorating the anniversary of the Declaration.
Closing the gap between the recognition of indigenous peoples’ rights at the international and national levels and ensuring concrete improvement on the ground remain my main pre-occupations.
I wish to take this opportunity to reflect on some positive developments as well as some of the obstacles that impede the Declaration from being implemented in practice.
Positive developments
To start on a positive note, I would like to emphasise that the Declaration has become a normative standard with widespread recognition. The only four states that voted against the adoption of the Declaration at the time have since reversed their positions and expressed explicit support. In 2014, at the World Conference on Indigenous Peoples, all States re-affirmed by consensus their support for its implementation.
The Declaration has provided an invaluable tool to galvanise indigenous peoples’ movements at national, regional and global levels to assert their inherent rights and to empower themselves.
The impact of the Declaration is illustrated by how its provisions have been embedded at the national level, notably by incorporation of indigenous peoples’ rights into Constitutions and domestic legislations. Examples of countries that have revised their Constitutions since the adoption of the Declaration incorporating the recognition of indigenous peoples and certain positive standards include Ecuador, Bolivia, El Salvador and Kenya.
Discussions on Constitutional reform are taking place in other countries such as Australia, Nepal, Chile and Guatemala. In some countries, treaty discussions with indigenous peoples are taking place. National laws have been adopted to give effect to the Declaration, notably in Bolivia and the Republic of the Congo. Supreme Courts and Constitutional Courts in Belize, Colombia and Mexico, among others, have furthermore cited the Declaration as a source of law in their jurisprudence.
National policies that seek to apply an indigenous rights-based approach have been adopted in several countries, such as in the area of bilingual intercultural education and in relation to public health, for example in Paraguay and Australia.
Of importance is the application of the Declaration as a source of law in the jurisprudence of regional human rights mechanisms, notably the Inter-American Court on Human Rights and the African Court on Human and Peoples' Rights.
In this regard, I would like to highlight the example of the case of the Kaliña and Lokono peoples in Surinam. I acted as an expert witness at the Inter-American Court on Human Rights and emphasised, with reference to the Declaration, the obligations to ensure the effective participation of indigenous peoples in conservation management and their right to restitution for lands incorporated into protected areas without their consent. I was delighted that the judgment issued in favour of indigenous peoples’ rights last year provided explicit recognition of the above rights.
Another precedent setting case is the judgement issued in May 2017 by the African Court on Human and Peoples' Rights in the case of the Ogiek peoples in Kenya. It specifically cites the provisions of the Declaration and recommendations set forth by my mandate in relation to the situation of the Ogieks.
At the international level, the Declaration has bolstered the focus that international human rights treaty bodies dedicate to indigenous rights. The provisions in the Declaration elaborate upon existing binding rights in the specific cultural, historical, social and economic circumstances of indigenous peoples and the various human rights treaty bodies have drawn upon the Declaration’s provisions in their recommendations to States.
The Declaration has also been referred to in the context of the Universal Periodic Review process as a measure of State compliance with indigenous rights.
I also wish to underline the importance of several decisions adopted by the Conferences of Parties to the UN Framework Convention on Climate Change and to the Convention on Biological Diversity, as these explicitly refer to standards set out in the Declaration.
I am furthermore encouraged that the 2030 Development Agenda and the Sustainable Development Goals set targets and indicators relevant for indigenous peoples and I look forward to seeing more efforts being made to achieve these. I also note as positive that the United Nations has adopted a System Wide Action Plan for the Rights of Indigenous Peoples last year.
Remaining challenges
Turning to challenges, I wish to recall that in 2014, I dedicated my thematic report to the Human Rights Council to identifying global obstacles to the implementation of Declaration. My country visit and thematic reports as well as the communications I continuously send to States further inform my overall analysis in this regard.
One fundamental challenge that, I, and my two predecessors, have observed is the failure by certain States to recognise indigenous peoples as such. This is a serious barrier to the implementation of the Declaration in several parts of the world. This lack of recognition denies many indigenous peoples their rights enshrined in international human rights law.
While an increasing number of countries are adopting legislation that recognises the rights of indigenous peoples, regretfully there are often glaring inconsistencies between such legislation and other laws, these include laws on investments and extractive activities such as mining as well as laws on forestry, agriculture and conservation. In order to advance implementation, it is imperative that States undertake thorough harmonisation of their national legal framework with applicable international human rights standards on the rights of indigenous peoples, particularly the Declaration.
Linked to this is also the importance that legislation be effectively enforced and complied with. The failure to comply and implement decisions affirming the rights of indigenous peoples by the national judiciary and by regional human rights courts remains a major concern.
Beyond the recognition of the legal obligations enshrined in the Declaration, we seem to have arrived to an impasse, in which the Declaration is not openly challenged but remains far from being implemented. I have held constructive but worrying dialogues with Governments and other actors during which they openly recognise their own inability to carry out the needed measures for the implementation of their responsibilities. The mere recognition of the problems and their limitations to solve them does not liberate States from further scrutiny or from effective compliance.
An important element to translate rights into practice is the adoption of adequate public policies. Public policies need to be based on participation and should address the underlying causes of poverty and marginalisation. The denial to self-determination is a central causal factor in the prevalence of poverty among indigenous communities. In order to overcome this, policy design should be done in consultation with indigenous peoples in order to jointly assess their needs, identify priorities and develop strategic action plans with goals and time frames for implementation. The lack of adequate data and indicators to measure progress in relation to the policies and measures adopted makes it difficult to assess the adequacy of State initiatives.
The exclusion of indigenous peoples in the design and implementation of laws and policies that affect them is linked to prevailing attitudes that range from ignoring or undervaluing indigenous peoples’ ways of life to blatant discrimination and racism. This all too often stems from the legacy of past racist colonial laws and policies that continue to distort perceptions of indigenous peoples and disregard indigenous governance and customary laws.
A particular challenge to ensure the respect for the rights of indigenous peoples is States’ failure to comply with their duty to consult and obtain the free, prior and informed consent of indigenous peoples before the adoption of measures that may affect them.
The intensifying expansion of extractive industries, agribusiness and mega infrastructure development projects, which encroach into indigenous peoples’ territories, are the main threats for most indigenous peoples. Conservation measures continue to pose risks to indigenous peoples, as do the swiftly expanding resources dedicated to climate change projects done without obtaining their free, prior and informed consent. The consequences of such violations on indigenous peoples, as I have observed in a wide range of countries across the world, continue to result in the expropriation of land, forced evictions, the denial of self-governance, lack of access to livelihoods and spiritual sites and the loss of culture.
I am particularly concerned by the escalating number of direct attacks against indigenous leaders and community members who seek to defend their land rights. Indigenous peoples defending their fundamental human rights are being threatened, arrested and prosecuted and in the worst situations, they become the victims of extrajudicial executions. Only in the past year, I have sent communications expressing concerns over these kinds of attacks inter alia in Brazil, Colombia, Ecuador, Guatemala, Honduras, Paraguay, Peru, Ethiopia, Kenya, Tanzania, India, Indonesia, the Philippines and the United States of America. Much more efforts and resources must be dedicated to prevent such violations and to bring the perpetrators to justice. I intend to scrutinise this disconcerting negative development in a forthcoming thematic report next year.
I also regret that there are still conflicting interpretations among key actors about how indigenous rights should be applied in specific situations, especially when competing rights and interests are at stake. I must point out that the United Nations system still fails to speak as one. There continues to be a lack of coherence within the UN system concerning the rights of indigenous peoples.
Articles 41 and 42 of the Declaration clearly state that the organs and specialised agencies of the UN System and other intergovernmental organisations shall promote respect for and full realization and application of the provisions of the Declaration, including at the country levels. I regret that I still hear some UN personnel, in particular those working on development issues, saying that indigenous peoples should not be obstacles to progress and development, echoing what some government officials say.
Mr. Chair,
Thematic report on climate change to the Human Rights Council
I now wish to refer to my thematic report on climate change and climate finance, which I presented to the Human Rights Council this September (A/HRC/36/46).
Indigenous peoples are among those who have least contributed to the problem of climate change yet are the ones suffering from its worst impacts. They are disproportionately vulnerable to climate change because many of them depend on ecosystems that are particularly prone to the effects of climate change and extreme weather events such as floods, droughts, heat waves, wildfires and cyclones. Some of the most affected regions are small islands, high altitudes, humid tropics, coastal regions, deserts and polar areas. Global warming increases disease risks, changes animal migration routes, reduces biodiversity, causes saltwater inundation of freshwater, destroys crops and results in food insecurity.
While indigenous peoples account for 5 per cent of the world’s population, they represent 15 per cent of those living in poverty. Some 33 per cent of people living in extreme rural poverty globally come from indigenous communities.
Estimates indicate that more than 100 million people across the world risk being forced into extreme poverty by 2030 due to climate change. This carries very significant implications for indigenous peoples who are already facing severe socio-economic disadvantages.
Indigenous peoples are not merely the victims of climate change. Rather, they have an important contribution to make to address climate change. Due to their close relationship with the environment, indigenous peoples are uniquely positioned to adapt to climate change and are repositories of knowledge on how to cope successfully with it. They play a fundamental role in the conservation of biological diversity, the protection of forests and other natural resources, and their traditional knowledge of the environment can enrich scientific knowledge and measures to mitigate and adapt to the effects of climate change.
Examples of such activities include climate monitoring and reporting, traditional fire management, disaster preparedness, early warning systems, rain-water harvesting, traditional agriculture techniques, coastal marine management, alternative energy development and the promotion of sustainable livelihoods. Furthermore, indigenous peoples can play an important role in stopping deforestation by land titling, forest management and conservation and by strengthening their local governance.
In its Fifth Assessment Report in 2014, the Intergovernmental Panel on Climate Change affirmed that indigenous knowledge has been effective in developing measures to cope with climate hazards and has contributed to increased food security in many parts of the world.
I wish to underline that States have obligations to protect rights-holders against foreseeable environmental impairment of human rights. It is also important to emphasise that States have specifically committed to international cooperation to protect human rights through a range of international treaties.
Furthermore, decisions by the Conference of Parties United Nations Framework Convention for Climate Change and the Paris Agreement explicitly recognise indigenous peoples’ rights. Respect for human rights must be an integral component in all decisions and actions taken on climate change mitigation and adaptation measures.
Climate finance refers to funding, sourced from public and private sectors, channeled through various mechanisms and funds for climate change mitigation and adaptation projects and programs. Climate finance has the potential to reinforce the efforts of indigenous peoples to adapt to the climate change impacts and contribute to climate change mitigation.
However, it also has the potential to create adverse impacts that undermine the rights of indigenous peoples. Violations of indigenous peoples’ rights have and continue to take place in the implementation of renewable energy projects, such as for example hydroelectric dams.
Climate change projects brought to indigenous territories should be agreed upon by the concerned indigenous peoples and should be designed and implemented in a participatory manner, one that provides co-benefits for indigenous peoples.
Indigenous communities and organisations have sought access to climate finance for projects to be implemented by indigenous peoples’ themselves. There is however no reliable data on the amount of climate finance which has reached indigenous peoples’ communities. Barriers remain for indigenous peoples to engage effectively with international climate funds, among these are the complex processes involved in seeking accreditation as project executing entities and preparing funding proposals.
I do however wish to note as positive that the Green Climate Fund, the largest international climate fund, published a draft indigenous peoples’ policy in July this year and circulated it for consultation. It provides an opportunity to incorporate indigenous peoples’ considerations into the Green Climate Fund’s decision-making and operations in ways that not only include ‘do no harm,' safeguard measures, but also identify opportunities to ‘do good’ and improve outcomes.
Country visits
I would also like to take this opportunity to refer briefly to the two country visits I have undertaken this year.
In February 2017, I carried out an official visit to examine the situation of indigenous peoples in the United States of America, and in particular, the situation related to extractive industries. Many indigenous peoples in the United States perceive a general lack of consideration of the future impacts on their lands when extractive industry projects are approved. They are denied access to information and are excluded from consultations at the project planning stage. Adequate social, cultural or environmental impact studies are often not undertaken.
In my end of mission statement, I expressed concern over the lack of meaningful consultation with indigenous peoples and recommended at a minimum, meaningful engagement and effective participation of tribal governments in assessing and reviewing extractive industry projects as a key element to the United States’ meeting its human rights obligations under the Declaration. Federal, State, and local governments should adopt consistent practices in consulting with tribes on projects that may affect indigenous rights. The United States should also take appropriate measures to ensure the United Nations Guiding Principles on Business and Human Rights are properly considered by all accountable actors in any projects that impact on indigenous peoples in the United States.
In March 2017, I undertook a visit to Australia. Regretfully, I observed overall negative trends despite Australia’s commitment to advance the United Nations Declaration on the rights of indigenous peoples and the rights of indigenous peoples. While the Government has adopted numerous policies to address the socio-economic disadvantage of Aboriginal and Torres Strait Islanders, these policies do not duly respect the rights to self-determination and to full and effective participation in society. Notably, Government policies have failed to reach targets in the key areas of health, education and employment and have led to a rapidly growing number of Aboriginal and Torres Strait Islanders being jailed and a disconcerting escalation of children being removed from their homes and communities.
The rate of incarceration of children as young as ten is particularly alarming as are the punitive conditions they are kept in. I visited Cleveland Youth Detention Centre in Townsville, Queensland, where Aboriginal and Torres Strait Islander children constitute 95% of the children detained. This stands in stark contrast to the fact that indigenous people constitute 3 per cent of the overall population and raises serious concerns over institutional racism. Among my recommendations, I urge the Government to adopt a justice policy target and fund measures to reduce indigenous incarceration rates.
In November this year, I will be undertaking an official visit to Mexico. I wish to thank countries in Latin America that have invited me to visit and I am hopeful that countries in Asia and Africa will soon demonstrate a similar openness.
Good practices
In addition to thematic studies and country reports, I have also engaged with various stakeholders to promote good practices. In June this year, I participated in a working meeting in Peru, jointly organised by the Inter-American Commission on Human Rights, the OHCHR Regional Office in South America and the NGOs IWGIA and Tebtebba to look into how the rights of indigenous peoples in voluntary isolation in the Amazon are being protected. The meeting developed practical recommendations through which their protection can be strengthened.
In November 2016, I participated in an international colloquium on the right to consultation and to free, prior, informed consent, organised by the OHCHR Office in Mexico. The regulation of consultation has been an objective of many indigenous peoples and governments and there are ongoing efforts to draft and adopt laws on consultation in Honduras, Mexico, Colombia and Brazil. I also undertook a working visit to Honduras from 17-20 April 2017 to observe developments on this particular issue after providing comments on their draft law on consultation.
I would like to conclude by expressing my gratitude to the numerous States, indigenous peoples, and others, and in particular to the Office of the High Commissioner for Human Rights, for the support they have provided as I have carried out my mandate during the past year.
I thank you all for your kind attention and I look forward to our dialogue.
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