The Indigenous World 2017: Editorial

As the world gears up for the 10th anniversary of the UNDRIP, indigenous peoples’ right to fully participate in the decision-making processes that affect their lives and futures continues to be at the heart of their struggles worldwide. The events unfolding over the last few years clearly demonstrate that, without the full and effective participation of indigenous peoples in decision-making at all levels, implementation of the UNDRIP will not be possible.

At national level, the effective implementation of the rights of indigenous peoples requires states to develop ambitious reform programs, including legal and political reforms, and specific measures to ensure that indigenous peoples’ rights are protected, respected and fulfilled. As stated by the UN Special Rapporteur on the rights of indigenous peoples, “Implementation of UNDRIP should be measured against these requirements and not based on rhetorical claims of compliance or isolated measures”.

Despite some encouraging national achievements, the reports in this year’s edition continue to illustrate the great pressures facing indigenous communities at the local level. If national policies are even available they are often not properly implemented, while in some countries national policies are in direct contradiction with international human rights obligations, including the UNDRIP and ILO Convention No. 169. The country reports reiterate that the main challenges faced by indigenous peoples continue to be related to the recognition and implementation of their collective rights to lands, territories and resources, their access to justice, lack of consultation and consent, and the gross violations of their fundamental human rights. In addition, the failure of states to consult and cooperate in good faith with indigenous peoples before adopting and implementing legislative or administrative measures that may affect their lives and futures continues unabated throughout the indigenous world.

Gaining ground at the international level

Implementation of the commitments adopted by UN member states at the World Conference on Indigenous Peoples (WCIP) continued at a slow but steady pace during 2016. Three developments are particularly relevant in this regard. The first was the consultation process led by the President of the UN General Assembly (PGA) on the possible measures necessary, including procedural and institutional steps and selection criteria, to enable the participation of indigenous peoples’ representatives and institutions in meetings of relevant United Nations bodies on issues affecting them. The PGA’s appointment of four advisers in February 2016, including two representatives of indigenous peoples on an equal footing with the two representatives of member states, to assist in conducting an inclusive consultation process, is undoubtedly an important step forward in the recognition of the right of indigenous peoples to participate in UN decision-making processes. The second was the official launch of the Systemwide Action Plan on the Rights of Indigenous Peoples (SWAP) at the 15th session of the Permanent Forum in May 2016. The aim of the SWAP is to address the persistent lack of coherence within the UN system with regard to the rights of indigenous peoples, including in its action at the country level, where the UN system has to play a much more proactive role in the promotion of UNDRIP. The third was the amendment of the mandate of the EMRIP by the Human Rights Council in September 2016. The new mandate, reinforcing the EMRIP’s operational capacities and extending its mandate to country-level work, has the potential to fill some of the gaps that continue to hinder implementation of the UNDRIP. However, and as expressed by EMRIP’s Chairperson in the article included in this book “…. having a new and strong mandate is not enough by itself. The new mandate will now have to be implemented, interpreted and operationalized, taking into account emerging opportunities, diverse national and regional contexts and resilient challenges… ”

2016 also marked the first year of implementation of the 2030 Agenda for Sustainable Development and, here, indigenous peoples continued their engagement. They participated actively at national, regional and global levels to ensure that the voice and rights of indigenous peoples are respected and promoted as the 2030 Agenda is being operationalized and implemented across the world. Through their consistent advocacy work, indigenous peoples have highlighted three main priorities in the implementation of the 2030 Agenda: a) data disaggregation according to indigenous or ethnic identifiers; b) full participation of indigenous peoples in developing national action plans; and c) participation of indigenous peoples in follow-up and review at all levels.

Within the area of climate change, the Paris Agreement, adopted in 2015, entered into force in November 2016, which was much earlier than anticipated by most and is seen as a great success with regard to states’ commitments to combating climate change. The Paris Agreement includes in its preamble a paragraph recognizing the role of human rights, including indigenous peoples’ rights. It is important that these principles become part of the modalities and rules of implementation of the Paris Agreement. Another key outcome from Paris for indigenous peoples was a COP-decision to establish a knowledge-sharing platform for indigenous peoples and local communities. Indigenous peoples and states embarked on an informal dialogue on the scope of such a platform under the leadership of the Moroccan presidency of COP22.

With regard to issues related to recognition and respect of indigenous peoples' rights in the context of the implementation of UNESCO’s World Heritage Convention, it is important to note the explicit reference made this year by the World Heritage Committee (WHC) to the principle of free, prior and informed consent (FPIC) when considering the nomination of the Kaeng Krachan National Park (Thailand) and the involvement of Karen communities living in the park. This is the first time ever that the WHC has called for the FPIC of indigenous peoples in a decision on a specific World Heritage nomination.

Some encouraging developments at national level

Whether in terms of formal legislation or more politically symbolic gestures, there have indeed been some noteworthy national developments in all regions. In Peru, encouraging news came in the form of the consolidation of the Autonomous Territorial Government of the Wampis Nation (GTANW), resulting in the Wampis nation achieving jurisdictional sovereignty over their territory of 1,300,000 hectares of land in the Loreto and Amazonas regions. This case formed a milestone for indigenous sovereignty as the constitution of this autonomous government forces the Peruvian state to recognize their right to govern themselves, within their own territorial boundaries. Similarly, in Bolivia, the first autonomous local government took office in the province of Charagua, in January 2017. The autonomous government is the first of its kind in the country’s nearly 200 years of existence.

In Myanmar, a National Land Use Policy (NLUP) was adopted by parliament in 2016, which includes a chapter on “Land Use Rights of Ethnic Nationalities”, referring to customary land tenure and land-use mapping. The document also mentions Free, Prior and Informed Consent (FPIC) as a means of addressing “land monopolization and speculation”. The NLUP is a landmark in Myanmar’s reforms as it has undergone extensive public consultation. After many years of debate and consultations, a Community Land Act was finally adopted in Kenya. The Community Land Act came into effect on 21 September 2016, thereby legally recognizing community tenure and officially marking the transition from Trust Land and Group Ranch tenures. The Community Land Act is potentially a very important piece of legislation for indigenous peoples in Kenya due to the fact that most communities under the community land regime are pastoralists and hunter-gatherers. In Bangladesh, the World Bank decided not to move forward with the construction of a 123-kilometre road in Rangamati, Chittagong Hill Tracts. A broad range of stakeholders, including indigenous peoples, had raised serious concerns about the lack of meaningful engagement of indigenous peoples in the project, including insufficient feasibility studies. After years of the High Court Division challenging the Chittagong Hill Tracts Regulation 1900 as “a dead law”, the Supreme Court of Bangladesh finally, in November 2016, reaffirmed the significance of the CHT Regulation, which provides safeguards for indigenous peoples through the special legal and administrative status of the CHT region.

Formal apologies were also issued to indigenous peoples during 2016. In Taiwan, President Tsai Ing-wen issued a formal apology on behalf of the government to all Taiwanese indigenous groups for the discrimination and mistreatment they had suffered over the past four centuries. A formal apology was also given in Namibia in mid-2016, as the German government resolved to recognize and formally apologize for the genocide of Herero, Nama and other groups between 1904 and 1908. Negotiations for reparations from Germany, led by Herero and Nama chiefs, are still in the process of being resolved. In Canada, Prime Minister Justin Trudeau has signalled a renewed relationship with indigenous peoples based on recognition, rights, respect, cooperation and partnership. In December 2015, Trudeau announced that his government would partner with indigenous communities, provinces and territories to implement the Truth and Reconciliation Commission’s 94 Calls to Action as a key step in advancing reconciliation. In May 2016, the federal government announced that as part of this commitment it was now a full supporter of the UN Declaration on the Rights of Indigenous Peoples “without qualification” and intended to adopt and implement it in accordance with the Canadian Constitution.

In Uganda, the Ik people managed to secure election of their own Member of Parliament (MoP) for the first time, enhancing their voices in decision-making fora. Much hope is therefore placed on this new MoP in terms of lobbying for the development of the Ik people.

The establishment of the cross-border Nordic Sámi Convention is also noteworthy, as it includes 46 articles on safeguarding and strengthening Sámi rights. The convention has, nonetheless, been met with criticism from Sámi legal experts and Sámi organizations and is, as of writing, being considered by the three Sámi parliaments and the governments of Finland, Norway and Sweden. All three countries’ Sámi parliaments and national parliaments will have to give their consent to the convention before it can enter into force.

Shrinking space for indigenous activists

The year 2016 witnessed an alarming rate of violence and discrimination of indigenous peoples and human rights defenders around the world. These disturbing trends are also reflected in the more than 20 press releases issued by the Special Rapporteur on the rights of indigenous peoples. Her concerns cover issues ranging from violence and discrimination against indigenous women in Canada to the human rights impacts of lead contamination in the water supply in Flint, USA and the murder of Berta Cáceres and a call to end impunity in Honduras (see article in this book). The different reports in this year’s edition of The Indigenous World accordingly illustrate the fact that gross human rights violations persist around the world and, in every region, we are witnessing forcible evictions and displacements of indigenous communities. Several indigenous leaders and activists involved in the defence of territorial rights were arrested, harassed, threatened and even murdered during 2016. Repression by military and paramilitary forces, in conjunction with these forcible evictions of people from their lands, has also taken a deadly toll.

The human rights situation of pastoralists in the Morogoro Region of Tanzania, for example, turned from bad to worse towards the end of 2016 when indigenous peoples were evicted in several districts, as the government pushes for the area to become a Game Controlled Area. The African Commission on Human and Peoples’ Rights’ Working Group on Indigenous Populations sent an urgent appeal to the President of Tanzania regarding the alleged arbitrary arrest and detention without trial of pastoralist rights defenders and lawyers who had been actively lobbying against the land grab in the Loliondo region.

Eritrea is suffering from gross human rights violations. A UN Commission of Inquiry published a landmark report in June 2016 which stated that the human rights situation in Eritrea amounted to crimes against humanity. The UN Commission of Inquiry on Human Rights and the UN Special Rapporteur on the Situation of Human Rights in Eritrea have made several observations on the rights of indigenous peoples and emphasize the abuses committed against two minority ethnic groups, the Afar and Kunama. Eritrea does not have any form of independent civil society organizations let alone organizations advocating for the rights of indigenous peoples. Claims of indigeneity or other claims to group identity have never been officially acknowledged by the Eritrean government. In Ethiopia, a further deterioration in the human rights situation took place in 2016, exacerbated by the imposition of a six-monthlong state of emergency as of October of that year. In 2016, under its Urgent Action Early Warning procedure, the CERD considered the case of Ethiopia with regard to arrests, mass killings and enforced disappearances in Oromia and Amhara.

The situation of the indigenous Palestinian Bedouin, refugees since 1948, deteriorated in 2016 and can be considered a humanitarian issue as some 27,000 pastoral herders live under full Israeli military control. For the Bedouin, and an environment in which they are increasingly impoverished and vulnerable, with a culture that is deliberately being eroded, the future is bleak and their situation tragic.

In Russia, organizations working for indigenous peoples’ rights are experiencing increased criminalization and stigmatization. Most independent indigenous organizations, together with 150 other civil society organizations, are now listed as “foreign agents”, and this particular law has led to harassment, persecution and interrogation of activists as well as the disappearance of many independent NGOs.

Threats posed by business enterprises

Mega infrastructure projects, investments in extractive industries and large-scale agriculture are increasingly posing a threat to the everyday life of indigenous peoples and their ability to maintain their land, livelihood and culture. The issue of extractive industries is once again a recurrent and overarching theme of this year’s articles in The Indigenous World.

During the Fifth Annual UN Forum on Business and Human Rights in November 2016, Pavel Sulyandziga, the Chairperson of the UN Working Group on Business and HR, stated in his opening remarks that since the UN had unanimously endorsed the Guiding Principle on Business and Human Rights in 2011 they had become “the authoritative blueprint for State and business action to prevent, mitigate and redress business-related harm [..] Rather than being ‘voluntary’ in nature, they provide authoritative guidance as to the application of existing international human rights standards to business-related harm”.1 However, while progress has been made, and some businesses and governments are making real efforts to respect those at risk, cases of adverse impacts on human rights are widespread and there is still a long road ahead in ensuring a human-rights based approach to business and development. As an indigenous representative himself, Pavel Sulyandziga stressed that indigenous peoples are not against development and not against economic progress as such but believe that this development should and must include indigenous peoples’ “direct participation and informed consent”.2

The Inter-American Commission on Human Rights (IACHR) and the African Commission on Human and Peoples’ Rights both published reports during 2016 on the impact of extractive industries on indigenous peoples in Latin America and Africa respectively. Besides these two reports, the articles throughout this book show the importance of the issue as well as its magnitude across the regions, ranging from hydroelectric projects (Muskrat Falls in Inuit Nunangat, Lom Pangar Hydroelectricity Dam in Cameroon), mining projects (zinc mining and uranium extraction in Greenland, the Orinoco Mining Arc in Venezuela, the Pankri-Barwadih coal mine in India, as well as the San Carlos Panantza mining project in Ecuador), wind power projects (Björkhöjden and Ögonfägnade in Sweden) and oil and gas projects (Yamal Liquid Natural Gas (LNG) project in Russia, Africa Oil and Tullow Oil exploration in the East African Rift Basin, the Dakota Pipeline Project in the US) through to mega infrastructure projects such as the Grand Interoceanic Canal across communal lands in Nicaragua not to mention plans to enlarge Kilimanjaro Airport on Maasai lands in Tanzania.

In Latin America, Africa, Asia, but also in Europe, North America and Russia, resource extraction is having a disastrous impact on indigenous peoples’ rights to lands and resources, a healthy environment and culture. Across the regions, these various forms of resource extraction and exploration have led to conflict, protests and serious allegations of gross violations of human rights.

In India, tribals who have lost their lands due to mining, industrialization and non-agricultural projects have been denied proper compensation, rehabilitation and other facilities, and those who oppose land acquisition or demand proper rehabilitation have been met with force. In August, two tribal farmers were killed and over 40 others injured when police opened fire on a crowd protesting against a thermal plant in Gola in Jharkhand. The protestors claimed that their crops were being damaged because of excessive use of river water by the power plant run by Inland Power Limited and because of the pollution it was causing. In October, four tribals were killed when police opened fire during a protest in Hazaribagh district, Jharkhand, against land acquisition by the National Thermal Power Corporation (NTPC). The protestors were demanding higher compensation, employment and rehabilitation.

In Ethiopia, the ongoing situation of “land grabbing”, where companies lease large tracts of land from the Ethiopian government in return for significant levels of foreign investment, has ignited conflict in the fragile region of Gambela. The deteriorating political situation in South Sudan has resulted in an influx of Nuer refugees, further marginalizing the Anuak and fundamentally altering the region’s demography, as well as causing increased pressure on land and other resources. Violence in the region increased significantly in 2016.

Indigenous peoples use different strategies to protect their land rights. Many are trying to map their territories. In Panama, indigenous peoples now have a satellite system for monitoring land use in their territories. This technology has been used to produce a base map of forest cover, including the indigenous territories that are recognized or in the process of recognition, for use a reference in support of territorial defence initiatives. In Burkina Faso, pastoralists who have suffered badly from theft of their livestock, with no recourse to justice, have formed local self-defence groups known as Koglweogo, aimed at helping to ensure the security of the nomadic pastoralists. As a result, the pastoralists have enjoyed greater security in the province of Mossi Plateau. In the Philippines, community members and plantation workers from Palawan reported how their rights were being violated by several companies that were continuing to expand their palm oil plantations on community lands without their Free, Prior and Informed Consent (FPIC). As the result of an audit that is currently being carried out by the Secretary of the Department of Environment and Natural Resources, 10 mining operations have already been suspended for violating environmental laws, and another 20 mines have been recommended for suspension. In Eritrea, the Canadian Nevsun Resources Ltd., which is exploiting natural resources on land belonging to potential indigenous groups of the Afar and Kunama, are involved in a pending court case on corporate social responsibility at the Supreme Court of British Colombia in Canada, aimed at challenging the alleged complicity of this company in the perpetration of human rights violations committed at the company’s mining site in Eritrea.

Indigenous women

The Special Rapporteur is mandated to pay particular attention to the rights of indigenous women in her work. In this sense, in January 2016 she was invited to the symposium Planning for Change: Towards a National Inquiry and an Effective National Action Plan, organized by the Canadian Feminist Alliance for International Action and the Native Women’s Association of Canada on missing and murdered indigenous women in order to discuss the National Inquiry into the issue. A commission is to recommend actions aimed at removing the systemic causes of violence and increasing the safety of indigenous women and girls. Indigenous communities and political organizations have welcomed the inquiry but have also indicated their concern at the slow start and as well as issues with regard to transparency. Under its Urgent Action Early Warning procedure, the CERD considered a number of serious indigenous rights-related cases which specifically address indigenous women, including cases of rape and attempted forcible eviction of indigenous women in Lote Ocho by staff from a Canadian mining company, the land claims of the Lubikon Lake Nation, the threat of extinguishment of the land rights of the Secwepemc and the St’at’imc nations, and the Sepur Zarco case from Guatemala.

The complainants in the Sepur Zarco case, a group of 15 women of the Maya Q’eqchi people who were victims of rape and sexual slavery committed by members of the army in the Sepur Zarco military base during the internal armed conflict, have denounced those acts and called for justice. After a long process, two of the principal culprits were arrested. Finally, 34 years after the acts were committed, in February 2016, the army officers were sentenced to 120 and 240 years of imprisonment respectively. This case clearly sets a precedent worldwide since it is the first time a crime of sexual abuse during an armed conflict has been tried in the same country in which it was committed.

Under the framework of the Fifth National Indigenous Congress (CNI) held in Mexico from 9 to 14 October, the EZLN and the CNI commemorated the 20th anniversary of the National Indigenous Congress and the living resistance of the native peoples, nations and tribes of Mexico. At the close of the Congress, they released a press release headed: And May the Earth Tremble at its Core in which they report that they will run an indigenous woman as an independent candidate for the 2018 elections. This is remarkable as this will be the first indigenous woman ever to run for the Presidency in Mexico.

10 years of paving the way with the UNDRIP

The most significant cornerstone of indigenous peoples’ rights, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) celebrates its 10th anniversary in 2017. Looking back over the last decade, it is clear that indigenous communities across the world have been able to use this important declaration as a beacon to advance their rights and improve their situation.

With the adoption of the Declaration on 13 September 2007, a milestone was reached in the history of indigenous peoples’ struggles for their rights and recognition at international level. Prior to its adoption, the Declaration had been discussed for more than 20 years within the former Commission on Human Rights and then in the General Assembly, where it was passed with 144 votes in favour, 11 abstentions and 4 votes against. The text recognizes a wide range of basic human rights and fundamental freedoms to indigenous peoples. Among these are the right to self-determination, an inalienable collective right to the ownership, use and control of lands, territories and other natural resources, rights in terms of maintaining and developing their own political, religious, cultural and educational institutions, and protection of their cultural and intellectual property. The Declaration highlights the requirement for prior and informed consultation, participation and consent in activities of any kind that impact on indigenous peoples, their property or territories. It also establishes the requirement for fair and adequate compensation for violation of the rights recognized in the Declaration and establishes measures to prevent ethnocide and genocide.

Ten years down the line, the Declaration is still the central benchmark for indigenous peoples’ rights across the world. One of the important principles of the Declaration that was further reaffirmed in the WCIP Outcome Document, and one that is repeatedly mentioned in many of the articles in prior editions and in this edition particularly, is the obligation of states to obtain the free, prior and informed consent (FPIC) of indigenous peoples before adopting and implementing legislative or administrative measures that may affect them. The various country reports demonstrate that full respect and implementation of this principle is more central than ever to indigenous peoples’ rights and well-being. Throughout the world, numerous examples show that both states and industries are repeatedly ignoring the principle of FPIC and, indeed, proceed with development projects on indigenous lands through dubious processes of consultation or without consulting the people living on and from the land that the projects will affect. Exploration and exploitation of natural resources is intensively expanding and indigenous peoples across the world, who live on lands rich in minerals and natural resources, are thus being affected by mining, hydroelectric dams, fossil fuel development, logging and agro-plantations, as well – increasingly as renewable energy projects and tourism. The impact of natural resource development on indigenous peoples’ lands, lives and well-being is illustrated in every article of this book.

While the articles in this volume address events, specific cases and highlight the general situation of indigenous peoples in 2016, this year’s volume also extraordinarily includes an introductory section that focuses on and celebrates the 10th anniversary of the UNDRIP, which coincides with the publication of this year’s Indigenous World. In the following section, the impact of the UNDRIP over the last 10 years will thus unfold, with brief regional chapters explaining and illustrating the different achievements and challenges that the UNDRIP has engendered for the respective regions since its adoption in 2007.

About this book

IWGIA would like to thank all those who have contributed to this 2017 edition of The Indigenous World and shared their valuable information and insights on the situation of indigenous peoples in their respective countries and in relation to processes at the international and regional levels.

The purpose of The Indigenous World 2017 is to give as comprehensive an overview as possible of the developments indigenous peoples have experienced during 2016. It is our hope that indigenous peoples themselves and their organizations will find it useful in their advocacy work of improving indigenous peoples’ human rights situation. They may also, in this regard, find it inspiring for their work to read about the experiences of indigenous peoples in other countries and parts of the world. It is also IWGIA’s wish and hope that the Yearbook will be useful to a wider audience interested in indigenous issues and that it can be used as a reference book and a basis for obtaining further information on the situation of indigenous peoples worldwide.

This year’s edition includes 59 country reports and 12 reports on international processes. As usual, the authors of this volume are indigenous and non-indigenous activists and scholars who have worked with the indigenous movement for many years and are part of IWGIA’s network. They are identified by IWIGA’s regional coordinators on the basis of their knowledge and network in the regions. All the contributions to this volume are offered on a voluntary basis—this we consider a strength but it also means that we cannot guarantee to include all countries or all aspects of importance to indigenous peoples every year.

We would like to stress that any omissions of specific country reports should not be interpreted as “no news is good news”. In fact, sometimes, it is the precarious human rights situation that makes it difficult to obtain articles from specific countries. In other cases, we have simply not been able to get an author to cover a specific country. If you would like to contribute to this book, please contact the IWGIA team. The articles in this book express the views and visions of the authors, and IWGIA cannot be held responsible for the opinions stated herein. We therefore encourage those who are interested in obtaining more information about a specific country to contact the authors directly. It is, nonetheless, our policy to allow those authors who wish to remain anonymous to do so due to the political sensitivity of some of the issues raised in their articles.

The respective country maps are, however, compiled by IWGIA and the content therein is the responsibility of IWGIA and not the author. We wish to stress that some of the articles presented take their point of departure in ethnographic regions rather than following strict state boundaries. This is in accordance with indigenous peoples’ worldview and cultural identification which, in many cases, cuts across state borders.

Katrine Broch Hansen

Co-editor

Lola García-Alix and Kathrin Wessendorf

Interim Directors

Copenhagen, April 2017

 

Notes and references

1 Pavel Sulyandziga, Chairperson of the UN Working Group on Business and Human Rights, 2016 UN Forum on Business and Human Rights, “Opening remarks” 14 November 2016, Geneva. Available here: http://www.ohchr.org/Documents/Issues/Business/ForumSession5/Statements/PavelSulyandziga14Nov2016.pdf

2 Ibid, p. 3.

 


UNDRIP IMPACT ON ASIA: 10 YEARS ON

This paper gives a brief overview of the implementation of the UNDRIP, focusing on Free, Prior and Informed Consent (FPIC) in Asia. Examples are included that highlight positive practices and also give a picture of the challenges and ways forward in promoting Article 42 of the UNDRIP. The paper is divided into three parts; substantive, procedural and recommendations. The substantive part is related to de jure and de facto recognition of the identity and rights of indigenous peoples in accordance with international human rights instruments, including the UNDRIP and ILO Convention No. 169. The procedural part focuses on the implementation of substantive rights, and the third part on challenges and recommendations.

Importantly, all Asian governments supported the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) during the UN General Assembly (GA) vote in 2007. Even though some of the Asian countries expressed their different understanding during the GA, indigenous peoples are recognized or at least identified as distinct peoples in Asia through constitutions (India, Nepal, Philippines, and China), laws (Cambodia and Taiwan), policies (Thailand etc.) and, finally, under an Agreement/Treaty (Bangladesh).1

Indigenous peoples in Asia were recognized or identified prior to the adoption of the UNDRIP but this does not necessarily result in respect for the equal dignity and rights of indigenous peoples as prescribed by the international human rights instruments, including ILO Convention No. 169 and the UNDRIP. The adoption of the UNDRIP certainly provided an instrumental basis on which to treat, at least to some extent, indigenous peoples as a distinct legal entity.

I.  Substantive part

Recognition of indigenous peoples

Institutional recognition is an essential factor for exercising the rights of indigenous peoples, including Free, Prior and Informed Consent (FPIC). There is no uniform practice in terms of recognizing the customary and representative institutions of indigenous peoples in Asia. In the Philippines, section 2(c) of the IPRA of 1997 states that the customary institution is recognized, protected and respected by the state. In Indonesia, the Constitution, and more recent legislation, implicitly recognizes some rights of the peoples referred to as Masyarkat adat or Masyaraka Hokum Adat, including in the Agrarian Reform Act No. 27/2007 and Act No. 32/2010 on the environment, both of which also use the working definition of AMAN.2 In Sabah and Sarawak in Malaysia, the Native Court is recognized with the jurisdiction to handle cases in breach of customary law and customs, if all parties are natives. Principally, the Native Court deals with marriage, divorce and judicial separation, adoption, guardianship or custody of infants, maintenance of dependents and legitimacy, gifts of succession, testate or interstate and other cases conferred by written law.

In some countries, indigenous organizations are recognized indirectly under a specific legal provision. In the context of Nepal, the Nepal Federation of Indigenous Nationalities (NEFIN) is part of the Council of the National Foundation for the Development of Indigenous Nationalities (NFDIN). This Council recommends the Vice-chair and members of the Executive Council.3 The NFDIN is a semi-governmental organization with a mandate of the overall development of indigenous nationalities. The Indigenous Tribal Council is constitutionally recognized in India. In many countries, such as the Philippines, Nepal and India, specific state institutions have been established to deal with issues related to the rights and development of indigenous peoples.

Freedom of association, organization and expression are guaranteed under the respective constitutions, such as article 19 of the Indian Constitution; articles 16 and 17 of the Constitution of Pakistan; article 14 of the Constitution of the Democratic Socialist Republic of Sri Lanka; article 9 of the Malaysian Constitution, etc. In order to exercise these rights, indigenous peoples have formed organizations to protect, promote and, to some extent, defend their rights, including culture, identity, land territories and natural resources.

National Human Rights Institutions (NHRIs)

Besides recognizing the customary institutions, the NHRIs are using the UNDRIP as the primary legal framework with which to monitor the human rights situation of indigenous peoples. In 2013, the Human Rights Commission of Malaysia (SUHAKAM) commissioned a national inquiry into the land rights of the Orang Asli and published a comprehensive report.4 The Commission made significant recommendations based on the UNDRIP, including FPIC. However, sufficient implementation of these recommendations is still lacking. In 2014, the National Human Rights Commission of Indonesia conducted its first national inquiry into violation of indigenous peoples’ land rights. The Commission made various recommendations, including improving the licensing system for natural resource exploitation based on principles of transparency, participation and accountability, including the principle of FPIC.5 Similarly, the NHRI in Nepal has established the Collective Rights Division and the Gender and Social Inclusion Division. The Commission has made recommendations to implement the UNDRIP and ILO Convention No. 169 and is working to adopt a National Action Plan on the implementation of ILO Convention No. 169 vis-à-vis the UNDRIP.

Recognition of culture and customary law

Recognition of customary law and culture is an indispensable element in exercising the right to FPIC. Customary land tenure is safeguarded under various provisions of ILO Convention No. 169 and the UNDRIP. In Malaysia, we can see recognition of customary rights in the constitution and law but this is rarely seen in practice. As much as 20% of state land in Sarawak is classified as Native Customary Rights Land but only 2% of this land is surveyed and titled.6 In the context of Nepal, no national law recognizes the collective land title of indigenous peoples but this does not prevent private entities from recognizing ancestral domain in relation to carrying out hydroprojects, e.g. the Tanahu Hydro Power, which is located in the ancestral land of Margar, or recognizing the land rights of indigenous peoples even if they do not have title to their lands, which are owned by individuals.

Recognition of lands, territories and natural resources

Recognition of lands, territories and natural resources (LTR) determines the exercise of other rights, including the rights to life, security and liberty. There are few countries that have laws (constitutional or statutory) recognizing indigenous peoples’ rights to LTR. The Fifth Schedule of the Indian Constitution deals with the administration and control of Scheduled Areas and Scheduled Tribes. It restricts the entry and ownership of land and resources in Adivasi areas on the part of non-adivasis and outsiders.7 In the Philippines the Republic Act 8371 (The Indigenous Peoples’ Rights Act) of 1997 supports IPs cultural integrity, their right to lands and to the self-directed development of these lands.

II.  Procedural part

Right to information

Prior and full disclosure of information is another key element of FPIC. The right to information is a constitutionally guaranteed fundamental right in many countries, including India,8 Nepal,9 and Pakistan.10 Many counties have specific laws on the right to information, including Pakistan11 and the Philippines.12 Despite this, indigenous peoples have very limited access to information due to language barriers, administrative complexities and provisions of confidentiality of information. Environmental laws in some Asian countries such India require a public hearing but their implementation mechanisms are not particularly friendly or culturally appropriate to indigenous peoples. In Nepal, very few World Bank-funded hydropower projects provide information in indigenous languages, and there is a lack of good faith consultations, which often results in conflicts between the project holder and the affected indigenous peoples.

Consultation

Consultation with affected indigenous peoples in relation to project activities is a legal requirement. In some countries, it is a policy requirement. In Nepal, section 8.2.8 (d) of the 2014 National Policy on Land Acquisition, Relocation and Rehabilitation states: “Disadvantaged Indigenous Peoples and Poor Dalit shall be relocated in the area where their people are living in cluster. Particular attention shall be given to avoid impact to their language, religion, culture, way of life and livelihoods”, and furthermore underscores in section 8.3.1 “Meaningful consultation will be carried out with affected, people, family and stakeholder in the whole project cycle”.

Free, Prior and Informed Consent

In the Philippines, the Indigenous Peoples Rights Act (IPRA) recognizes FPIC as a part and process of exercising the right to self-determination. Section 59 of the 1997 IPRA states “[A]ll department and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production-sharing agreement, without prior certification from the National Commission on Indigenous Peoples (NCIP) that the area affected does not overlap with any ancestral domain. Such certificate shall only be issued after a field-based investigation conducted by the Ancestral Domain Office of the area concerned: Provided, that no certificate shall be issued by the NCIP without the free and prior informed and written consent of the IPs concerned: Provided, further, that no department, government agency or government owned or controlled corporation may issue new concession, license, lease, or production-sharing agreement while there is pending Certificate of Ancestral Domain Title (CADT) application: Provided, finally, That the IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process”.

The IPRA law created the National Commission on Indigenous Peoples (NCIP) under the office of President, and this is an agency with frontline services for indigenous peoples. The NCIP issues guidelines for the implementation of IPRA, some of which are the NCIP Administrative Orders laying down the FPIC Guidelines of 2002 and 2006.13 New guidelines have been introduced by NCIP with some updates. Although there have been a number of complaints relating to violations of FPIC, including weak implementation of the guidelines, there are significant improvements in respect of FPIC. The FPIC Guidelines are not mere instructions to respect the FPIC but also a cornerstone in assessing exercise of the right to self-determination. They also form a road map to engage indigenous peoples in decision-making processes.

In the Nepal case of Dr Bhaikaji Tiwari vs. Chaturbhuj Bhatta, the Supreme Court interpreted that the state could not exercise the Principle of Eminent Domain without limitation and in an arbitrary manner. Free, Prior and Informed Consent is mandatory prior to appropriating a house in which a person is residing.14 Article 51(e) and (f) of the Constitution of Nepal set out the policy of FPIC in relation to protection of the environment. There are a number of interesting examples on how the right to consent was respected in India. The different facets of the UNDRIP are expressed in Indian legislation through the Forest Rights Act (“FRA”), which requires consent for the use of forests for development projects.

There are a few interesting examples of courts/tribunals upholding local communities’ rights to reject the implementation of a project. Notable among these is the Supreme Court of India’s precedent-setting 2013 decision which cited the FRA in upholding the rights of the Dongria Kondh indigenous community to reject mining plans in their traditional territory. To give some context, it had been more than a decade since Adivasi groups began their struggle to save the Niyamgiri Hills from Vedanta’s mining project. In April 2013, the Supreme Court ruled that Vedanta Resources could only mine bauxite from Orissa’s Niyamgiri Hills with the consent of all adult members of the project-affected villages. All 12 villages voted against bauxite mining in the Niyamgiri Hills, effectively vetoing the multi-billiondollar project.15

Other FPIC-type examples from India

On 16 March 2016, five Adivasi villages in Raigarh, Chhattisgarh, unanimously vetoed the plans of South Eastern Coalfields Limited (SECL), a subsidiary of India’s public sector coal mining giant, Coal India Limited (CIL), to mine their forests. These villages were Pelma, Jarridih, Sakta, Urba and Maduadumar. On 23 March 2016, the Kamanda gram sabha of Kalta G.P in Koida Tehsil of Sundargarh district in Odisha unanimously decided not to give its land over to Rungta Mines, as proposed by the Industrial Infrastructure Development Corporation of Odisha Limited (IDCO).

On 4 May 2016, the National Green Tribunal ruled that before clearance could be given to the Kashang hydroelectric project (to be built by the stateowned company, Himachal Pradesh Power Corporation Ltd. or HPPCL), the proposal should be placed for approval before the Lippa village gram sabha in Kinnaur district of Himachal Pradesh. The 1,200 residents of Lippa have been waging a seven-year struggle against the project.

III.  The role of UN Regional and Country Offices

UN regional and country offices can play a significant role in promoting implementation of the UNDRIP; however, they have very limited programs and activities and these are therefore almost invisible to indigenous peoples and their organizations. Importantly, article 32 of the UNDRIP, the recommendations of the UNPFII, EMRIP, and the Special Rapporteur, as well as the Outcome Document of the WCIP provide a consistent and coherent roadmap for the UN regional and country entities to work on promoting implementation of the UNDRIP. Nevertheless, indigenous peoples continue to be marginalized and excluded from their respective plans and programs. For example, the Governance and Peace-building team at the UNDP Bangkok Regional Hub is working to strengthen the political democratic processes and governance systems, taking into account the voices and rights of all people for equitable and sustainable development. It is also spearheading regional initiatives to address the complex governance challenges in the region, including on sensitive issues such as political participation and access to services for indigenous peoples and marginalized groups, including sexual and gender minorities.16 However, the program does not specifically focus on implementation of the UNDRIP and FPIC. There is no doubt that the role of the regional UN Hub and Country Offices can have a significant impact on implementation of the UNDRIP, including FPIC. Importantly, the inclusion of and partnership with indigenous peoples can promote sustainable development, justice and peace.

Challenges and opportunities

Having constitutional and legal provisions is not enough. They require due implementation. It is important to create an environment in which the right to FPIC will be implemented or respected without invoking remedial mechanisms or protesting in Asia. Prior consultation, premeditated representation during public hearings and consultations, limited participation or even non-representation at all of indigenous women, youth and person with disabilities are key challenges in Asia in terms of exercising the right to FPIC. The UN Country Offices and Special Agencies, such as the Country Office of the International Labour Organization (ILO) and its programs, need to increase their efforts to promote implementation of the UNDRIP and ILO Convention. In the context of Nepal, a joint UN Development Assistance Framework (UNDAF) Steering Committee, including the UN Country Team and the Government of Nepal, was formed in June 2011 to lead the overall UNDAF design.17 However, there is no representation of indigenous peoples in the steering committee and nor were they consulted. As such, there was no linkage between indigenous peoples and the UN Country Offices in the preparation of UNDAF.

There are opportunities for a more effective implementation of the UNDRP. First and foremost would be for all Asian governments to endorse the UNDRP as well as recognize indigenous peoples’ identity and rights in their countries’ constitutions, laws and policies. The indigenous peoples’ movement and their organizations have been consistently demanding implementation of the UNDRIP, and demanding constructive dialogue, collaboration and partnership around developments that affect them. Most Asian governments have mechanisms relating to indigenous peoples’ affairs and development. NHRIs are also working on the rights of indigenous peoples and are involved in litigation processes related to violations of indigenous peoples’ human rights and fundamental freedoms as stipulated in the UNDRIP, ILO Convention No. 169 and CERD. The existence of UN Country Offices, their development policy, i.e. UNDAF, and the support of donor agencies can play a constructive role in this implementation.

Conclusion and recommendation

Due to the longstanding struggle of the indigenous movement in Asia, there is growing space for recognition of the equal rights and dignity of indigenous peoples in line with the UNDRIP. Gradually, the issues and concerns of indigenous peoples are being recognized on the national political agenda and are now being understood as matter of “just and unjust”. However, coherent and systematic efforts at community, national and international level are essential in order to fight injustice. The UNDRIP is frequently referred to by government agencies and nonstate actors, including business entities who are working with issues that concern and affect indigenous peoples. The UNDRIP provides a framework for constructive lobbying and advocacy work, and provides a consensus within which to resolve issues relating to aggressive development amicably. IPs do, however, need to strengthen their strategic efforts to advance in the implementation of the rights enshrined in the UNDRIP at all levels, from local to international level.

The UN mechanisms dealing with IP rights (UNPFII, EMRIP and SRIP) can play a significant role in promoting the UNDRIP, including FPIC, while implementing their mandates. UNPFII and EMRIP could, in this regard, establish a mechanism or at least assign some of their experts to monitor regional developments and UN Country Offices’ activities relating to the implementation, monitoring and facilitation of the UNDRIP and FPIC. This mechanism or Expert Member could create a synergy between the regional, national and community levels among rights-holders, dutybearers and stakeholders for the effective implementation of the UNDRIP.

All UN Country Offices in the region should recognize indigenous peoples (in line with the UNDRIP/ILO Convention No. 169) and ensure their inclusion and participation in the review of UNDAF. Participation of the specific national mechanism and/or institution (i.e. NCIP, NFDIN, Tribal Commission etc.) should create some space for IPs to reflect their voice in the formulation plan, implementation and evaluation.

While carrying out their mandates, UNPFII, EMRIP, SRIP and other relevant international mechanisms should have periodic meetings to jointly review the implementation of recommendations related to UNDRIP with national mechanisms dealing with IP issues and NHRIs. In such meetings, it is important to have the presence of representatives of the UN Country Team or staff members from relevant sectors. The mandate of the aforementioned three UN mechanisms should be extended to conducting an international inquiry into gross violations of the rights enshrined in the Declaration. Awareness/Orientation Programs for policy makers, implementers, judges/court staff, stakeholders and indigenous peoples are important at national and community levels. Policy and tripartite (IPs, governments and stakeholders) dialogues focusing on specific issues and problems will promote a better understanding and help conflict resolution.              

Notes and references

1 The Indigenous World 2016, IWGIA.

2 Ibid. p. 262.

3 Sec. 7 (1) C and 7(1)L of NFDIN Act, 2007.

4 Published in Malaysia by the National Human Rights Commission in 2013.

5 Summary of the Inquiry, http://www.forestpeoples.org/sites/fpp/files/publication/2016/04/komnas-ham-nationalinquiry-summary-apr2016. p.7, pdf

6 https://www.culturalsurvival.org/publications/cultural-survival-quarterly/native-customary-rights sarawak visited 18 January 2017.

7 Background paper, Ticy Thomas, http://www .jnu.ac.in/huriter/righttribals.htm

8 Article 19(1) of the Constitution of India.

9 Article 27 of the Constitution of Nepal, 2015.

10 Article 19 A of the Constitution of Pakistan (18th Amendment).

11 Right to Information Ordinance 2002.

12 Executive Order No. 2 on Freedom of Information.

13 Policy Brief, Department of Environment and Natural Resources Climate Change Office Philippines, 2013, p.1.

14 Decision No. 9508, Volume 57, Chaitra, Series 12, 2072

15 For more information, please see: Amnesty International, India: Landmark Supreme Court ruling a great victory for indigenous rights (April 2013).

16 http://www.asiapacific.undp.org/content/rbap/en/home/library/democratic_governance/governance-n-peace-building-annual-report-2015.html

17 www.np.undp.org/content/dam/Nepal/docs/legalframework/UNDP_NP_UNDAF%2013-2017 p.5

 

This article is based on the paper presented by Shankar Limbu at the International Expert Group Meeting on the theme Implementation of the UNDRIP organised by the Secretariat of the UNPFII in January 2017.

 

Shankar Limbu is an indigenous human rights attorney from Nepal. He is associated with the Lawyers’ Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP). In his role with LAHURNIP, he provides free legal aid services and works to promote, protect and defend the human rights of indigenous peoples in Nepal.

 


UNDRIP IMPACT ON AFRICA: 10 YEARS ON

The situation of indigenous peoples in Africa has changed following the adoption of the United Nations Declaration on the Rights of the Indigenous Peoples (UNDRIP, hereafter the Declaration) ten years ago in 2007. On the contrary, the Declaration has almost forced African States to move, even though not with the same pace and sometime not in the same direction.

Africa became a critical player in the final phase of Declaration adoption process, following last-minute strong comments, which almost ruined and derailed over twenty years of negotiations between indigenous peoples and States.1 But the initially feared strong comments of the African Group to the Draft Declaration had one major beneficial effect: it enabled Africa as a continent to have its imprints into the Declaration and thus becoming an irrefutably part of the process and the final document.2 African states could no longer argue not being part of the Declaration.

This paper shows that like on other continents, the Declaration as landmark and unprecedented international legal framework, has shaped and continue to influence laws, policies, programmes, courts decisions and recommendations of regional bodies in Africa. At both regional and national level, Africa has achieved a number of milestones on protection, respect and promotion of indigenous peoples’ rights. But this paper shows also that there are still major challenges to overcome in order for African indigenous peoples to enjoy all rights enshrined into the Declaration.

Africa at regional level

Conceptualisation of indigenous peoples’ rights in Africa

Before the adoption of the Declaration important steps regarding indigenous peoples’ rights had already taken place in Africa. In 2000, the regional human rights mechanism, the African Commission on Human and Peoples’ Rights (the African Commission), established a Working Group on indigenous peoples. In 2005, the Working Group issued a first-ever African Union report domesticating or “Africanising” the term “indigenous peoples”, clearly unfolding the concept and criteria of indigenous peoples in the African context. The report clearly states that unlike many other continents, who refer to aboriginality, the principle of self-identification is a key criterion for identifying indigenous peoples in Africa.3 The African Commission conceptualizing report has been of critical importance in the development of indigenous peoples’ rights on the continent. It played a key role in involving New York-based African delegates and diplomats in the negotiation process of the Declaration and to understand and support the Draft.4 The African Commission also issued an Advisory Opinion on the Draft Declaration,5 which is thought to have also played a key role in getting the African Group onboard.

The adoption of Declaration provided political space for indigenous peoples’ issues and thereby galvanized, strengthened and provided impetus to the work of the African Commission on indigenous peoples. The majority of African policy makers became familiar with the indigenous peoples discourse as a result of the intensive negotiations by African diplomat in New York. Over the past ten years following the adoption of the Declaration, the African Commission has established its authoritative status on the issue and has consequently guided or inspired almost all efforts on indigenous peoples in Africa, including at country level.

Endorois decision and Ogiek case before the African Court on Human and Peoples’ Rights

One of the major milestones of indigenous peoples’ rights in Africa, following the adoption of the Declaration, is the African Commission’s decision in the Endorois case. The Endorois indigenous peoples are pastoralist communities of Kenya living around the Lake Bogoria, a globally known tourist attraction mostly because of its flamingo birds and natural resources. The Endorois peoples were dispossessed of the concerned ancestral lands which became a protected area. Following an exhaustion of domestic remedies, the Endorois indigenous peoples brought their complaint to the African Commission, who in 2010 ruled against the Kenyan Government emphasizing that the evictions were in violation of several rights of the concerned indigenous community, including their rights to lands, natural resources and cultural identify. The Decision was the first if its kind in Africa, making explicit reference to the Declaration and confirming the applicability of the concept indigenous peoples in the African regional human rights system.6 Over the years, the African Commission has continued to lead by example on litigation of indigenous peoples’ rights in Africa. In 2012 it referred a case brought forward by the Ogiek peoples against the Kenyan government to the newly established African Court on Human and Peoples’ Rights. The Ogiek peoples, recognized as having lived in the Mau Forest since time immemorial, allege consistent violations and denial of their land rights by the government of Kenya in relation to the transformation of their ancestral lands into a forest reserve, known as the Mau Forest Complex. Since then, the Court has held several hearings on the case. In 2013, the Court issued a provisional measures order requiring the Kenyan Government to stop land transactions in the Mau Forest and refrain from taking any action which would harm the case, until it had reached a decision. A decision is expected any time soon.7

African Commission engaging on numerous fronts, including UNESCO World Heritage, UN WCIP and World Bank Safeguard review process.

The African Commission, through its Working Group, has thus become the central interlocutor, relentlessly engaging various stakeholders, interested parties and processes on indigenous peoples’ issues. In 2009 for instance, the African Commission adopted a Resolution on climate change and indigenous peoples, calling upon African States to pay attention to the particular vulnerability of indigenous communities to climate change.8 It has also engaged UNESCO on a number of cases relating to cultural heritage sites that are either located on indigenous peoples-claimed lands or have a negative impact of the rights of indigenous peoples. At its 50th ordinary session for instance, the African Commission adopted Resolution “No197 on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of Lake Bogoria as a World Heritage site” calling upon “the World Heritage Committee and UNESCO to review and revise current procedures and Operational Guidelines, in consultation and cooperation with the UN Permanent Forum on Indigenous Issues and indigenous peoples, in order to ensure that the implementation of the World Heritage Convention is consistent with the UN Declaration on the Rights of Indigenous Peoples and that indigenous peoples’ rights, and human rights generally, are respected, protected and fulfilled in World Heritage areas;” 9

The African Commission also contributed to the effective participation of African member States in the 2014 World Conference on indigenous peoples. The African Commission held numerous closed technical briefing sessions with African diplomats based in New York, providing them with background information on efforts being made on indigenous peoples’ rights throughout Africa. The African Commission also actively participated in the negotiations of the Outcome Document as well as its appropriation in Africa. In 2014 for instance, the African Commission held a regional sensitization seminar on the Outcome Document in Yaoundé/Cameroon, with the participation of the UN Special Rapporteur on the rights of indigenous peoples, numerous National Human Rights Commission (NHRIs), African indigenous peoples’ representatives and other stakeholders. This regional sensitization seminar on the Outcome Document led to the adoption of a “Yaoundé Declaration on the Implementation of the Outcome Document of the World Conference on indigenous peoples”, which among others “call for the development of integrated National Action Plans to implement the Outcome Document which will ensure that all national legislations, policies and administrative measures and development programs recognize, promote, fulfill and protect the rights and freedoms of indigenous peoples;” 10

The African Commission led the continent during the review process of the World Bank’s safeguards standards, including the one on indigenous peoples

O.P.4.10 (now known as Environmental and Social Safeguard 7 (ESS7) on indigenous peoples/Sub-Saharan African historically underserved traditional communities). Following the initial draft of a revised World Bank policy on indigenous peoples that provided for an alternative approach and an opt-out option, the African Commission engaged in dialogue with the World Bank, though various means including formal correspondences, resolutions, meetings in Washington and Ethiopia. In its Resolution ACHPR/Res.301 (EXT.OS/XVII) 2015: “on the World Bank’s draft Environmental and Social Policy (ESP) and associated Environmental and Social Standard (ESS)”, the African Commission called upon the World Bank to:

“to align its Environmental and Social Safeguards Policy and associated Environmental and Social Standards (ESS) with international and regional legal frameworks for the protection of indigenous peoples;… to undertake the revision of the safeguards policy by removing the ‘opt-out’ clause included in Environmental and Social Standard 7 (ESS7) and consult all stakeholders, including the indigenous communities and the African Commission on Human and Peoples’ Rights in the entire revision process;”

The African Commission has indeed been leading most of the work and initiatives on indigenous peoples in Africa over the last ten years. And it seems committed to continue the work hereon. In 2016 while celebrating its 50th years of existence, the African Commission organized a set of Panel discussions on major human rights trends and issues featuring the continent, including one on “the rights of indigenous women in Africa”, with the participation of a UNPFII representative.11 The African Commission has also just published an important study report on the impact of extractive industries on indigenous peoples on the continent.

At national level

The continental leadership role of the African Commission on indigenous peoples’ issue is trickling down to country-level and renders national initiatives. For instance, the African Commission provided a sustained support, including a country visit to the Republic of Congo during the process of adopting the first-ever African domestic law (Act No. 5-2011 of 25 February 2011) dealing specifically with indigenous peoples. This was after the Central African Republic became the first African country to ratify ILO Convention 169 in 2010.

Over the last years, Africa has indeed seen a number of Sates taking bold steps regarding indigenous peoples’ rights. In 2010, Kenya adopted a new Constitution that identifies communities that have “retained and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy; or(d) pastoral persons and communities” as groups whose cultural existence and preservation depend on the protection of their ancestral rights over lands and resources.12 In DRC, several laws’ bylaws on forest make explicit references to indigenous peoples and a specific draft Law on indigenous peoples is currently being debated in Parliament. There is also an International Forum on Indigenous Peoples in Central Africa sub-region, “Forum International sur les Peuples Autochtones en Afrique Centrale (FIPAC)”, established in 2011 by member States of the Economic Community of Central African States (CEAC).13 In 2015, following the San Development Programme of 2005, the Namibian Government established a Deputy-Ministry in charge of a special Division on Marginalised Communities14 with a mandate to promote indigenous peoples in Namibia and assist in the adoption of the White Paper on the Rights of Indigenous Peoples in Namibia, drafted by the Office of the Namibian Ombudsman in 2014.15

In several international processes, including on climate change negotiations and biodiversity conservation, African States continue to show willingness to dialogue and reach consensus on indigenous peoples’ issues. Under the Human Rights Council-led UPR process for instance, a constantly growing number of African States are recognising the existence of specific ethnic groups that selfidentify as indigenous peoples and are in fact taking concrete commitment to address their situations:

  • Gabon 2012 State Report to UPR: “Drawing on the United Nations Declaration on the Rights of Indigenous Peoples, Gabon, together with civil society and a number of development partners, is taking steps to protect the rights of indigenous peoples through public debates and the provision of medical, educational and economic assistance.”
  • Namibia 2011 State Report to UPR: “Regarding the rights of indigenous communities, the Government identified certain communities that were particularly deprived (the San, the Ovatue and the Ovatjimba) and had implemented support programmes to raise their standard of living.”
  • Uganda 2011 State Report to UPR: “Uganda has indigenous communities who include the Batwa in the West; Benet in the Mt. Elgon region; the Tepeth in Karamoja; and others in other remote locations. While it is acknowledged that their situation is still unsatisfactory, Government is actively seized of the matter and continues to pursue the delicate path of accommodative dialogue with them; with a view to minimizing any disruptive approaches to the lifestyle and traditions of the concerned communities.”

A steady number of African States are also taking active part in the annual sessions of the United Nations Permanent Forum on Indigenous Issues (UNPFII) and the Experts Mechanisms on the Rights of Indigenous Peoples (EMRP). Additionally, since the adoption of the Declaration, three African States have formally invited the UN Special Rapporteur on the rights of indigenous peoples to visit their countries, namely Botswana, Republic of Congo and Namibia.

The involvement of National Human Rights Commissions (NHRIs) has been critically important for the steady progress on indigenous peoples’ rights in Africa. In recent years, several African National Human Rights Commissions have indeed included indigenous peoples’ issue in their agendas. In Kenya, the national human rights commission has a specific programme of action on indigenous peoples and has been actively following up on several cases regarding indigenous peoples. In 2016, the Kenyan NHRI, in collaboration with the UNPFII, held a policy dialogue on indigenous peoples. The Tanzanian national human rights commission, known as the Commission on Human Rights and Good Governance (CHRAGG), also works on indigenous peoples rights. In addition to sensitization seminars, including with government officials and members of parliament, it recently assisted in a policy dialogue on indigenous peoples, in collaboration with International Fund for Agriculture and Development (IFAD) and IWGIA, involving numerous government institutions most notably the minister in charge of foreign affairs who made constructive statements on the issue of indigenous peoples in Tanzania.16 National human rights commissions from Cameroon and DRC have also started working on indigenous peoples’ issues.

Persisting challenges to overcome on indigenous peoples’ rights

Despite the above illustrative positive examples, there are still major challenges facing indigenous peoples in Africa. In several African states, indigenous peoples are yet to be recognised as such. Arguments of all Africans being indigenous or that the concept “indigenous peoples” is divisive and unconstitutional are persistently expressed in political statements and continue to shape policies of several African States.

Large-scale dispossessions of indigenous peoples’ lands remain a significant challenge in several African States. The global drive for raw materials, agro-business and building of major infrastructures are pushing indigenous peoples in their last boundaries. A recent African Commission report on extractive industries and indigenous peoples reveal the negative impact several mining, agro business and logging projects are having on indigenous peoples’ land rights and access to natural resources. In several cases, tensions with indigenous peoples have led to open conflicts, including leading to loss of lives. In this regard, the African Commission has sent several urgent appeals to a number of African Governments on serious human rights violations affecting indigenous peoples.

Conflicts constitute another major challenge affecting indigenous peoples in Africa. At the seminar by the Columbia University’s Institute for study of human rights on “indigenous peoples rights and unreported struggles: Conflicts and peace” held in May 2016, the author of this article presented a paper “Unaccounted for: Indigenous peoples victims of conflicts in Africa”, which revealed the high unreported number of indigenous victims of several armed conflicts that have been affecting Africa. The paper calls for concerted efforts to address the particular vulnerability of indigenous peoples to conflicts in Africa.

Violence against indigenous women and girls continues to feature several indigenous communities in Africa, including harmful cultural practices such as FGM, early or forced marriage and inaccessibility of good standards on reproductive rights.

Overall, one could put African states into three categories as far as the protection of indigenous peoples’ rights is concerned. First, there are African States that have fully endorsed the concept “indigenous peoples in Africa” and have moved on to adopt legal or policy frameworks aimed at addressing the concerned communities’ particular human rights situation. These states are still small in number but their potential impact is immense. Second, there are African states which recognize and are willing to redress the historical injustices and marginalization suffered by certain sections of their national populations that self-identify as indigenous peoples, but remain uncomfortable with the term “indigenous peoples” and therefore prefer using alternative concepts in their laws or policies. Third, there are African states that continue to contest the existence of indigenous peoples in Africa or the relevance of the concept in Africa. There are numerous reasons for this denial, including a misunderstanding of what the concept “indigenous peoples in Africa” cover.

Conclusion

The Declaration has had a positive impact on the situation of indigenous peoples’ rights in Africa. It has created political space for indigenous peoples’ issues by exposing African states, political elites and decision-makers to the issue. The efforts by the African Group to differ the adoption of the Declaration and successfully negotiated amendments in fact enabled many African diplomats and political decision-makers to properly understand the contours and rationale of the concept “indigenous peoples” and the rights attached hereto. This exposure has undoubtedly contributed a great deal to the recent positive developments on indigenous peoples’ rights in Africa, including legislation, specific programmes, and interests of several national human rights commissions. The African Commission on Human and Peoples Rights has played a leading and guiding role for most of the initiatives on indigenous peoples that are underway on the continent.

Despite persisting challenges, it is believed that the Declaration will continue to shape laws, policies and development programmes in Africa. The protection and promotion of indigenous peoples’ rights will continue to be enhanced on the continent, as many African states seek to achieve development that are peoplescentered and leave no one behind.     

Notes and references

1 Albert K Barume, 2009, “Responding to the concerns of the African States”, in eds. C, Charters and R. Stavenhagen, Making the Declaration work: The United Nations Declaration on the Rights of Indigenous Peoples, IWGIA document No.127, Copenhagen, pp. 170-183.

2 Most of African Group comments were focussed on ensuring the Declaration does not endanger States’ territorial integrity and political stability, as indicated in Article 46 of the Declaration.

3 See full report on: http://www.iwgia.org/iwgia_files_publications_files/African_Commission_ book.pdf

4 Short explanation of the process of convincing the African member states and the importance of the advisory opinion as well as a link to where it can found in internet. http://www.achpr.org/files/special-mechanisms/indigenous-populations/un_advisory_opinion_ idp_eng.pdf

5 See full text of the Advisory Opinion on: http://www.achpr.org/files/special-mechanisms/indigenous-populations/un_advisory_opinion_idp_eng.pdf

6 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya, see on http://www.achpr.org/communications/decision/276.03/

7 More information on this case can be found on either the website of the Court or that of Minority Rights Group (MRG): http://en.african-court.org or http://minorityrights.org/law-and-legal-cases/ the-ogiek-case/

8 See full text of the Resolution on: http://www.achpr.org/sessions/46th/resolutions/153/

9 African Commission on Human and Peoples’ Rights, 50th Ordinary Session held in Gambia, in 2011, see on: http://www.achpr.org/sessions/50th/resolutions/197/

10 The full text of the Yaoundé Declaration can be found on: http://www.achpr.org/news/2015/12/d205

11 See more about this Panel Discussion through the following link: http://www.achpr.org/news/2016/07/d248/

12 Section 260 of the 2010 Kenyan Constitution

13 More information on this initiative are available on : http://www.fipac.net

14 Ute Dieckmann, 2015, Namibia, in IWGIA, Indigenous Peoples Year Book, 2015, pp.432-437

15 See more regarding the Namibian national human rights commission on: https://www.ombudsman.org.na/publications/

16 See more about this Policy dialogue in Tanzania on: http://ifad-un.blogspot.co.uk/2016/12/roundtable-dialogue-on-consultation.html

 

Albert K. Barume is an African-trained lawyer with a Ph.D. in international human rights law from the University of Essex in the United Kingdom. He also holds a Master’s degree in Environmental Management from Yale University in the USA. Dr. Barume has worked on issues of indigenous peoples’ rights and the environment in Africa for over 20 years, including as a Geneva-based Senior Specialist on indigenous peoples at the International Labour Organization (ILO) for five years. He has been an Expert Member of the African Commission on Human and Peoples’ Rights’ Working Group on Indigenous Peoples since 2007. He is also the current Chair of the United Nations Experts Mechanism on the Rights of Indigenous Peoples (EMRIP). Dr. Barume has written and published books and articles on indigenous peoples’ rights.

 


 

UNDRIP IMPACT ON LATIN AMERICA: 10 YEARS ON

With a total of 826 peoples and a population estimated at 45 million indigenous individuals, that is, less than 10% of the region’s total population, Latin America is nonetheless the continent with the highest indigenous demography on the planet.1 As a consequence of the indigenous peoples’ growing organizational work and political engagement, statutory and constitutional reform processes have taken place in almost all States of the region, recognizing their existence and rights. All of region’s States —with the exception of Colombia, which initially abstained but later acceded to it— voted in favor of adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or Declaration) in 2007. The UNDRIP has had a significant impact for recognition of indigenous peoples’ rights in the region. This is particularly true within the Inter-American Human Rights System, where it has influenced case law, which is often based on indigenous peoples’ rights recognized in that Declaration. The UNDRIP also contributed to the Organization of American States’ approval in 2016 of the American Declaration on the Rights of Indigenous Peoples (IADRIP). Furthermore, the UNDRIP has had an influence in transformations of constitutions, statutes, and case law applicable to indigenous peoples at the level of States. There are still major shortfalls, however, in the implementation of the rights that the UNDRIP recognizes for indigenous peoples in most of the States. Those shortfalls have often been related to policies fomenting the extraction of resources, which, in the context of insertion by the region’s States into global markets, have led to a proliferation of investments by large corporations in indigenous lands and territories, and to criminalization of indigenous protest.

The impact of the UNDRIP in the Inter-American Human Rights System

Up until 2016 the Inter-American Human Rights System did not have a specific norm applicable to indigenous peoples. Nonetheless, its bodies —the Inter-American Court of Human Rights (IACHR Court) and the Inter-American Commission on Human Rights (IACHR Commission)— have developed case law regarding the rights of indigenous peoples based on an evolving interpretation of the fundamental instruments of the Inter-American Human Rights System.2 That interpretation considers what the IACHR Court has called the corpus juris of human rights applicable to indigenous peoples. Said corpus includes, among other instruments, ILO Convention 169, and, since its approval, the UNDRIP. In fact, based on the provisions of the UNDRIP, the IACHR Court has further developed its prior case law regarding indigenous peoples’ communal ownership of their lands, territories, and natural resources on the grounds of traditional occupation. Accordingly, in numerous decisions, the Court has recognized indigenous peoples’ right to ownership of their traditional territories, as well as the duty of protection under Article 21 of the American Convention.3 This is both in light of the provisions of ILO Convention 169 and those of the UNDRIP, as well as the rights recognized by the States in their internal laws, which have often been influenced, in turn, by the UNDRIP.

Likewise, the UNDRIP has had a determinant influence in the case law of the IACHR Court over the indigenous peoples’ right to consultation and to free, prior, and informed consent when faced with development plans that affect their lands, territories, and resources. Thus, in the case of the community of Saramaka v. Suriname (2007), the IACHR Court ordered that for large-scale projects that would have a major impact on that people, the State has an obligation not only to consult, but to obtain their free, prior, and informed consent in accordance with their customs and traditions. Together with that, the Court established that States must ensure that the benefits of said projects are reasonably shared with the Saramaka people. Later, in the case of the Kichwa People of Sarayaku v. Ecuador (2012) the IACHR Court established, as part of the indigenous peoples’ right to consultation, that such consultation must take place in advance, in good faith, and with the aim of reaching an agreement, which must be adequate, accessible, and informed. The same case law principle in reference to the duty of consultation, also based on the UNDRIP, was repeated later in the cases of the Garífuna Community of Punta Piedra and its Members v. Honduras, 2015, and Garífuna Triunfo de la Cruz Community and its Members v. Honduras, 2015.4

The American Declaration on the Rights of Indigenous Peoples

In June 2016 the General Assembly of the Organization of American States (OAS) approved the IADRIP. Although talks on the IADRIP started 17 years ago, long before approval of the UNDRIP, the debate around its content took place parallel to that of the UNDRIP and was clearly influenced by it. The approval of the UNDRIP in 2007 led to questioning the need for an IADRIP, in particular considering the risks that the IADRIP would lower the bar set in the UNDRIP. In many aspects the IADRIP, as finally approved, adopts the standards established by the UNDRIP. For instance, it recognizes that indigenous peoples have a set of rights that are collective in nature, including the right to self-determination and autonomy or self-governance in political matters, and rights over the lands, territories, and natural resources they possess by reason of traditional occupation. Despite its valuable aspects, however, as IWGIA and Observatorio Ciudadano noted on an earlier occasion, the IADRIP not only lowers the bar established in the UNDRIP, but also constitutes a setback for the advances achieved through the case law of the above-referenced Inter-American Human Rights System.

Among its most troubling aspects is that after the IADRIP’s Article III recognizes indigenous peoples’ right to self-determination in the same terms as those of the UNDRIP, its Article IV affirms the principle of territorial integrity and sovereignty of the State. Furthermore, its Article VI on indigenous peoples’ collective rights establishes that “States shall promote with the full and effective participation of the indigenous peoples the harmonious coexistence of rights and systems of the different population, groups, and cultures,” thus weakening the notion of ‘people’ and its legal implications for ensuring their autonomous functions. The IADRIP’s Article XVIII on the protection of the environment states that indigenous peoples have a right to be protected against the disposal of toxic waste or hazardous substances in their territories, but omits the right of indigenous peoples contained in the UNDRIP (Article 29.2) that such disposal may not occur without the indigenous peoples’ free, informed consent. Another omission of the IADRIP refers to the States’ obligation to hold consultations “…in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources,” contained in Article 32.2 of the UNDRIP. Likewise, Article XXIV of the IADRIP, which regulates indigenous rights over the territories, lands, and natural resources they have traditionally occupied, possessed, or acquired in ownership, remits to the legal system of each State for defining modes of recognition and forms of ownership, possession, or dominion. As a counterweight that article remits to the relevant international instruments. This contrasts with the UNDRIP, which does not remit to the legal system of the States for defining rights over indigenous territory, lands, and resources.5

Statutory and case law developments in the States of the region

The UNDRIP has also had significant influence in the internal legal systems of the region’s States. On a constitutional level the UNDRIP is reflected in the political constitutions of Ecuador and of Bolivia, which were drafted, in 2008 and 2009, respectively, after the UNDRIP’s approval. Both these constitutions recognize their States as plurinational. Especially in the case of Bolivia, they establish public bodies —both legislative and judicial— that consider the representation of indigenous peoples. Also momentous is the explicit recognition in Bolivia’s political constitution of the right of indigenous nations and peoples to self-determination, which consists of their right to autonomy, to self-governance, to their culture, to the recognition of their institutions, and to the consolidation of their territorial entities (Article 2). The constitution of Ecuador recognizes the right of indigenous peoples to develop their own forms of organization and social coexistence, and of generating and exercising authority in their territories, as well as the right to delimit indigenous territorial limits (Article 60). Both constitutions also recognize the indigenous peoples’ territorial rights, including rights of possession and ancestral ownership of their lands and territories (Article 57 of the Political Constitution of Ecuador and Articles 2 and 30 of the Political Constitution of Bolivia), and the right to share in the benefits from exploitation of natural resources in their territories (Article 30 of the Political Constitution of Bolivia). Together with that, the constitution of Ecuador recognizes the indigenous peoples’ rights to free, prior, and informed consultation over the exploration and exploitation of such resources and to sharing in the benefits of their exploitation (Article 57), while Bolivia’s constitution recognizes the right to mandatory, concerted prior consultation conducted by the State in good faith with respect to the exploitation of non-renewable natural resources in the territory they inhabit (Article 30). Finally, the constitution of Ecuador recognizes that the human rights established in international instruments, including not only treaties, but also declarations such as the UNDRIP, are directly applicable and fully enforceable (Article 11.3).

With respect to statutes, worth mention is the case of Bolivia, where in 2007 a Law (3760) was enacted that incorporates the UNDRIP into the country’s national legislation. Years later, Bolivia passed several laws to move forward in building the structure of the Plurinational State, among them the Plurinational Constitutional Court Act, the Judiciary Act, the Electoral Regime Act, the Plurinational Electoral Body Act, and the Framework Act for Autonomy and Decentralization. All of these laws were enacted in 2010 and include provisions on the rights of indigenous peoples recognized in the UNDRIP. Along the same lines, Peru enacted a prior consultation act that establishes consultation’s aim as that of reaching an agreement or consent between the State and the native peoples on administrative and legislative measures that directly affect those peoples. The final decision on the measures consulted is placed in the hands of the State, which must decide with bases on and considering the consequences its decision would have for the collective rights of indigenous peoples constitutionally recognized in treaties ratified by the Peruvian State. In 2012, however, the regulation was issued on the Consultation Act, and it was questioned by indigenous peoples both on procedural grounds (the regulation was not drawn up with representative indigenous participation) and on substantive grounds (the regulation does not consider consent in the case of megaprojects, deposits of toxic tailings, displacement of the population, or when the survival of indigenous peoples is affected).

With respect to territorial rights, in 2016 Ecuador enacted the Rural Lands and Ancestral Territories Act of Ecuador of 2016, which, among other matters, regulates rights to communal land and to territories of indigenous peoples and nationalities. The act recognizes and ensures ancestral possession by indigenous peoples in keeping with the UNDRIP. It is troublesome, however, that the act does not contain any instrument enabling the recognition and return of indigenous peoples’ ancestral territories. Nor does it include provisions allowing communal lands to be returned to indigenous peoples when irregularities are confirmed in their transfer of ownership. With respect to the right to participation, also recognized in the UNDRIP, in Chile during 2016 the government sent the Congress two legislative bills. The first was for the creation of the Ministry of Indigenous Affairs and the other was for creation of a National Indigenous Council, comprised by fifteen council members to be elected by the indigenous peoples, which would take charge of approving national indigenous policy. The second bill furthermore proposes the creation of nine Councils of Indigenous Peoples, one for each people, with a total of 69 representatives elected by the indigenous peoples, which might constitute bodies representative of their interests vis-à-vis the State. Although these bills are relevant, they have yet to be enacted.6

Another area where the UNDRIP has had important influence is that of the case law of the courts of justice and constitutional courts of the States. With respect to territorial rights, in 2007 the Supreme Court of Belize invoked the UNDRIP when interpreting the country’s Constitution in order to protect the right of the Mayan indigenous peoples to their traditional lands.7 In 2009 the Supreme Court of Chile invoked the indigenous peoples’ rights to protection of the environment contained in the UNDRIP in order to grant a petition for protection on the grounds that the wetlands of a Mapuche community were adversely affected by a forestry company.8 In addition to these cases, there are numerous judgments from these courts that invoke provisions of ILO Convention 169 or the case law of the IACHR Court —which, as has been indicated, has been nourished by the UNDRIP— to recognize indigenous peoples’ rights to ownership of land, territory, and natural resources. This is seen in matters such as the delimitation and titling of territory, the return of lands, indigenous peoples’ rights over natural resources, and the right to share in the benefits derived from the exploitation of natural resources in their territories.9

Likewise, there is numerous case law from the same courts of justice and constitutional courts of the region regarding the indigenous peoples’ right to prior consultation, in particular, with respect to the exploitation of natural resources. This case law, invoking the UNDRIP, or Convention 169 in provisions consistent with the UNDRIP’s fundamental content, or the case law of the IACHR Court (which, in turn, refers to the UNDRIP) has protected the rights recognized for indigenous peoples on this fundamental issue.10 Of special importance is the constitutional case law of Colombia regarding consultation on investment projects in indigenous lands and territories. For example, the Constitutional Court of that country ruled that, for development plans or large-scale investments that have a major impact in indigenous territories, the State must not only consult, but must also obtain the indigenous peoples’ free, prior, and informed consent.11 More recently, a judgment of the same Constitutional Court has reaffirmed this case law, ordering that consultation must be carried out in due form to obtain free, prior, and informed consent on three projects that affected the Emberá Katío indigenous people: the construction of a highway, the binational Colombia-Panama electricity interconnection, and a mining concession. The judgment also ordered the halting of execution of those projects until the corresponding consultations with the affected indigenous peoples are made.12

The UNDRIP and public policy: Advances, gaps, and tension

The UNDRIP has also had a significant impact on regional public policies concerning indigenous peoples. One of the areas in which the influence of the UNDRIP has been most relevant is that of the granting of title to indigenous lands and territories. The Declaration has contributed to processes —not exempt of difficulties— that were being promoted in States such as Bolivia, Brazil, and Colombia for the identification, demarcation, disencumbrance, and, in some cases, communal titling in favor of indigenous peoples for their lands of traditional occupation. Despite such progress, the gap in implementation of constitutional provisions regarding indigenous peoples, identified by the former Special Rapporteur on Indigenous Rights, Rodolfo Stavenhagen, (2006), is equally applicable to many of the UNDRIP’s provisions. It is clear that many States have not implemented the UNDRIP’s Article 42, which provides that the States “shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.” That means that indigenous peoples, as collectives or as individuals in the region, in most cases are still unable to fully enjoy their human rights and fundamental freedoms (Article 1) recognized in the Declaration for persons and peoples pursuant to international law. As the ECLAC report submitted to the 2014 United Nations World Conference on Indigenous Peoples indicates,13 despite advances in the recognition of their rights at a regional level, indigenous peoples continue to be subjected to situations of vulnerability and are affected by the persistence of a high degree of inequality in almost all aspects of their lives.

One of the most critical realms for full application of the rights recognized to indigenous peoples in the Declaration is with respect to their lands, territories, and natural resources (Articles 26 et seq.) , and related to these, “…the right to determine and develop priorities and strategies for exercising their right to development” (Article 23) That is not a coincidence, but is closely related to the States’ imposition upon indigenous peoples of the States’ own vision and development plans. Those plans are generally based on the exploitation of natural resources located in the lands and territories of traditional indigenous occupation and run counter to the plans of life of the indigenous peoples. As ECLAC indicates in said regard in its recent report:

“Expansion of the primary and export sectors in the region has had serious environmental impacts, involved reclassification of spaces and been detrimental to the rights, interests, territories and resources of indigenous peoples. Disputes associated with control over territories and natural resources easily lend themselves to violent conflict but can be exacerbated in contexts of political exclusion, social discrimination, and economic marginalization.” 14

Related to this, another cause for concern is the growing violence against the indigenous peoples’ human rights defenders in the region and the criminalization of indigenous social protest generated by conflicts over investment projects in indigenous territories. Above all, a 2016 Global Witness report notes that of the 185 environmental rights defenders murdered in the world in 2015, two-thirds correspond to Latin America, many of whom were indigenous defenders.15 Such is the case of Berta Cáceres, a leader of the Lenca people of Honduras, murdered in 2016 after being incarcerated and threatened over her actions against the Agua Zarca hydroelectric project. The criminal persecution of indigenous rights defenders is reflected in cases such as the prosecution under antiterrorist laws of defenders of rights of the Mapuche people in Chile, for which the State of Chile was held liable by the IACHR Court in 2014 (Norin Catriman et al v. Chile), or the case of the recent prosecution by the State of Ecuador of several members of the Shuar people who are defending their ancestral territory against the imposition, without consultation, of the San Carlos-Panantza mining project.

Conclusion

There have been legal and political advances in the rights of indigenous peoples in Latin America since the UNDRIP’s approval, to which, as has been indicated, that Declaration has significantly contributed. Nonetheless, serious challenges persist for the application and full enjoyment of those rights. On the one hand, this includes the rights of indigenous people as individuals, since indigenous individuals are still subject to multiple forms of discrimination, including in their economic, social, and cultural life. On the other, it includes the indigenous peoples’ collective rights, such as self-determination, autonomy, and political participation, recognized in the Declaration itself. Possibly the realm in which the deficit for the effective enjoyment of these rights is most severe is that of effective protection of lands, territory, and natural resources of the indigenous peoples, which are affected by the imposition of projects for extractive investment or for infrastructure promoted by the States, often without consultation and without benefit sharing. This reality can be seen throughout the region, revealing that the States have failed to fulfill their obligation to promote full application of the Declaration as established in the UNDRIP’s Article 42. Under that same article, States have the principal responsibility for adopting legislative measures and public policies to implement the rights recognized in the UNDRIP. And, as Article 42 also establishes, this effort should be contributed to by United Nations bodies such as the Special Rapporteur on Indigenous Peoples, the United Nations Permanent Forum on Indigenous Issue, treaty bodies, and the Human Rights Council. Their work in monitoring and promoting the rights that the UNDRIP recognizes since its approval, though valuable, must be strengthened. These are the challenges that the Declaration poses in the region for the next decade of its application.

 

Notes and references

1 Economic Commission for Latin America and the Caribbean (ECLAC). Guaranteeing indigenous people’s rights in Latin America. Progress in the past decade and remaining challenges. Santiago, ECLAC, 2014.

2 The American Declaration of the Rights and Duties of Man of 1948 and the American Convention on Human Rights of 1969.

3 Saramaka v. Suriname, 2007; Xáxmok Kásek Indigenous Community v. Paraguay, 2010; Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, 2012; Kuna Indigenous People of Madungandí and Emberá Indigenous People of Bayano and their Members v. Panama, 2014; Garífuna Community of Punta Piedra and its Members v. Honduras, 2015; Garífuna Triunfo de la Cruz Community and its Members v. Honduras, 2015; Case of the Kaliña and Lokono Peoples v. Suriname, 2015.

4 The case law of the Inter-American Court of Human Rights referred to here can be consulted at: http://www.corteidh.or.cr/index.php/jurisprudencia

5 IWGIA and Observatorio Ciudadano, OAS: Declaración vulnera derechos de los pueblos indígenas, 6/22/2016, http://www.iwgia.org/noticias/buscar-noticias?news_id=1376

6 In relation to legislative progress in the implementation of the UNDRIP, see Human Rights Council. Report of the Expert Mechanism on the Rights of Indigenous Peoples. Final summary of responses to the questionnaire seeking the views of States and indigenous peoples on best practices regarding possible appropriate measures and implementation strategies to attain the goals of the United Nations Declaration on the Rights of Indigenous Peoples, http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/27/67&referer=/english/&Lang=E

7 Manuel Coy et al. v. The Attorney General of Belize et al., Supreme Court of Belize, Claim No. 171 and No. 172 (2007). See also A/HRC/9/9, ¶ 54.

8 Court of Appeals of Temuco. Judgment on Appeal for Protection, Case 1773-2008, dated September 16, 2009, Francisca Linconao v. Forestal Palermo, upheld that same year by the Supreme Court of Chile.

9 BOLIVIA, Constitutional Judgment 2003/2010-R, October 25, 2010; COLOMBIA, Judgment T-769 of 2009, October 29, 2009 (Reporting Judge: Nilson Pinilla Pinilla): Judgment T-129 of 2011, March 3, 2011 (Reporting Judge: Jorge Iván Palacio Palacio): Judgment T-282 of 2011, April 12, 2011 (Reporting Judge: Luis Ernesto Vargas Silva); Judgment C-366 of 2011, May 11, 2011 (Reporting Judge: Luis Ernesto Vargas Silva); PERU, Judgment of the Constitutional Court No. 03343-2007-AA, February 19, 2009; Judgment of the Constitutional Court No. 0022-2009-PI/ TC, June 9, 2010; and Judgment of the Constitutional Court No. 00024-2009-PI, July 26, 2011: See Galvis, María Clara and Ángela María Ramírez, Digest of Latin American Jurisprudence on the Rights of Indigenous Peoples to Participation, Prior Consultation and Community Property. DPLF, Washington DC 2013, http://dplf.org/sites/default/files/digesto_indigenas_web_final.pdf

10 COLOMBIA, Judgment C-366 of 2011, May 11, 2011 (Reporting Judge: Luis Ernesto Vargas Silva); ECUADOR, Judgment No. 001-10-SIN-CC, Cases No. 0008-09-IN and 0011-09-IN (joined), March 19, 2010; GUATEMALA, Judgment, Cases 1643-2005 and 1654-2005, February 28, 2008; PERU, Judgment of the Constitutional Court No. 03343-2007-AA, February 19, 2009; and Judgment of the Constitutional Court 0022-2009-PI/TC, June 9, 2010. In Galvis, María Clara and Ángela María Ramírez, 2013, op cit.

11 Constitutional, Judgment T-769/09 handed down in the case of Álvaro Bailarín et al. over exploration and extractive activities of mineral resources by Muriel Mining in Emberá territory without appropriate consultation.

12 Constitutional Court of Colombia, Judgment Number T-129 of March 3, 2011.

13 Economic Commission for Latin America and the Caribbean (ECLAC), 2014, op cit.

14 Ibid, p. 56 y 57.

15 Global Witness, 2016, January 2017, https://business-humanrights.org/es/%C3%A9nfasis-sobre-defensores-y-defensoras-de-derechos-humanos-bajo-amenazas-y-ataques

 

José Aylwin is the Director of Observatorio Ciudadano of Chile and an IWGIA collaborator.

Tags: Global governance, IWGIA Report

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