The Indigenous World 2016: Editorial
Speaking on a panel organized during the 2015 UN Forum on Business and Human Rights and entitled “Utilizing the Guiding Principles in the context of extractive industries – benefits and challenges” the UN Special Rapporteur on the rights of indigenous peoples, Ms. Victoria Tauli-Corpuz noted that despite developments in human rights law in relation to indigenous peoples’ rights, the reality around the world was that serious violations of these rights continue unabated.
The different reports in this 2016 edition of The Indigenous World underscore this discrepancy between what is said and decided at the international level and the daily life of indigenous peoples. What used to be called the “implementation gap” has become an “implementation abyss”!
Achievements at the international level
Throughout 2015, indigenous peoples’ representatives have been extremely active at the international level and, due to their consistent efforts, there have been some notable achievements. For months, indigenous representatives have been engaged in preparing for the two important UN events of the year: the United Nations Sustainable Development Summit in September and the 21th Conference of Parties (COP21) of the UN Framework Convention on Climate Change (UNFCCC) held in Paris in December. In each case, indigenous expert groups—the Indigenous Peoples’ Major Group on Sustainable Development Goals (SDGs) and the International Indigenous peoples Forum on Climate Change and its Global Steering Committee—have organized preparatory regional seminars, formulated proposals, engaged with stakeholders and State Parties, lobbied and elaborated statements, position papers, and key demands. Although the final documents— the United Nations’ new framework, “Transforming Our World: the 2030 Agenda for Sustainable Development”, the UNFCCC States Parties’ Intended Nationally Determined Contributions (INDGs) to the reduction of emissions and the Paris Climate Change Agreement—did not fulfil indigenous peoples’ expectations, some of their concerns were met: the 2030 Agenda includes references to indigenous peoples in several paragraphs and mentions them in Goals 2 and 4. There is also a general view that the SDGs are a major improvement to the Millennium Development Goals (MDGs) and that the Agenda’s references to, inter alia, human rights, human dignity, the rule of law, justice, equality and non-discrimination, the respect for ethnicity and cultural diversity are positive elements. Few of the Internationally Determined Contributions (INDCs), however, include any reference to indigenous peoples, their rights and potential contributions; but indigenous peoples will have an opportunity to contribute to the Nationally Determined Contributions (NDC) that will be elaborated to replace the INDCs when a country ratifies the Paris Agreement. As for the four key demands to COP21 which had been consensually adopted by 200 indigenous representatives during the Indigenous Peoples’ Caucus, they were not taken into consideration. In the Paris Agreement, the language on human rights and indigenous peoples’ rights was only included in its Preamble, but its section on adaptation does recognize the importance of indigenous peoples’ knowledge and local knowledge systems for adaptation actions.
Other positive developments at the international level reported for 2015 include: the decisions taken by the UN Secretary General and the President of the UN General Assembly with regard to the follow up on the implementation of the Outcome Document of the World Conference on Indigenous Peoples and the drafting of a system-wide action plan with inputs from indigenous peoples, the UN Permanent Forum on Indigenous Issues (UNPFII), and the UN Expert Mechanism on Indigenous Peoples (EMRIP). The increased attention given by some of the Treaty Bodies—in particular the Committee on the Elimination of Racial Discrimination (CERD), the Committee on Economic, Social and Cultural Rights (CESCR) and the Committee on the Rights of the Child (CRC)—to indigenous issues, is another positive development. The decision by the 39th session of the World Heritage Committee (WHC) to introduce references to indigenous peoples in its operational guidelines must also be seen as the result of several years lobbying efforts by indigenous organizations; the committee also encouraged States to obtain the free, prior and informed consent of indigenous peoples when nominating sites for World Heritage listing and took several notable decisions on specific sites where indigenous peoples have expressed concerns. The UN Working Group on Business and Human Rights visited Brazil and signaled a series of critical issues in relation to, inter alia, the displacement and violation of indigenous peoples’ rights caused by large-scale development projects on their territories.
Also to be noted is the active role played at the regional level by the Inter-American Court (IACHR) regarding the protection of indigenous peoples’ rights in providing precautionary measures (Nicaragua, Argentina), declaring complaints admissible (Nicaragua) and passing judgments ordering states (Suriname, Panama) to implement actions to respect indigenous rights. In the case of Paraguay, that has failed to comply with three judgments in indigenous cases, the Court has passed a resolution that opens up the procedure for actions that could lead to the appointment of judges in the country to whom the court will delegate oversight of the rulings. In another case, the court has established that the Paraguayan state has been in arrears since 2014 and will need to make a back payment of US$10,000 to the Xákmok Kásek community for failure to return their lands. In Guatemala, the economic and social reparations ordered by means of an IACHR ruling for those communities that suffered massacres during the internal armed conflict began finally to take shape in 2015 with the implementation of a payment plan. In Panama, compensation for the Guna de Madungandi people (US$2 million) and the Emberá communities of Ipetí and Piriatí (US$560,000) was paid by the State in fulfilment of the sentence imposed by the IACHR as a consequence of its violation of their territorial rights caused by the Alto Bayano hydroelectric dam, built in 1972.
In Africa, the Working Group on Indigenous Populations of the African Commission on Human and Peoples’ Rights continued to work actively on indigenous rights issues in Africa, among others producing a study on the impact of extractive industries on the rights of indigenous peoples in Africa.
Positive developments at the national level
In Canada, the newly elected Prime Minister Justin Trudeau expressed his strong commitment to improve the relationship to indigenous peoples. Trudeau furthermore has prioritized the implementation of the Truth and Reconciliation Commission’s Calls to Action, including the implementation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).
A number of countries have also passed laws that—if implemented in the right spirit—may have a positive impact on indigenous peoples’ situation. In Taiwan, e.g., an amendment to the Indigenous Peoples’ Basic Law strengthens the legal status of indigenous communities; the Central African Republic’s new Constitution adopted in December 2015 recognizes ILO Convention No. 169 and includes in its Articles 6 and 148 the protection of indigenous peoples’ rights; in India the passing of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill will provide stringent action against those involved in crimes against indigenous peoples.
In Aotearoa, progress has been made in the settlement of Maori claims regarding historical Treaty breaches. In South Africa, the government endorsed the conclusions of a study on the traditional knowledge associated with the rooibos plant stating that “ …the traditional knowledge rests with the Khoi and San people of South Africa….Any individual or organization planning a bioprospecting project involving rooibos must engage with the Khoi and San people”.
The situation at community level
However, most of the country specific reports in this yearbook give a rather bleak picture of the situation of indigenous communities at the local level. When looking at socio-economic parameters, there are few signs of progress—in some cases it is even reported that the situation has deteriorated, as for instance in Mexico where extreme poverty among indigenous peoples has increased since 2012.
National policies are also often in dire contrast to the international agreements, the various states have committed themselves to—notably international conventions, UNDRIP, and ILO Convention No. 169—but also to the intentions behind the newly adopted Agenda for Sustainable Development and Paris Agreement.
Land and resource rights
The root cause of many indigenous peoples’ socio-economic poverty is their pre- carious situation when it comes to land and resource rights. In some countries, there may be delays in land regulation (Brazil), in titling collective properties (Venezuela); in others, indigenous land rights are not respected and land expropriation, land grabbing and encroachments occur regularly—legally or illegally—but often in relation to large agribusiness development plans, extractive industries and infrastructural developments, and accompanied by the forced displacement of indigenous peoples.
An example of agri-business related land alienation is from Ethiopia, where the government allows foreign companies to lease large land tracts in return for foreign investments, while pursuing at the same time a villagization policy which aims at resettling those who live in rural areas to villages with improved access to amenities… which often are not being provided. In Bolivia, new laws will enable the agribusiness sector to expand the agricultural frontier, from its current 3.7 million ha to 20 million ha.
Extractive industries—legal or illegal—affect indigenous peoples from Norway to Botswana and from Latin America to Asia and pose increasing problems to indigenous communities, their social fabric, their health and their environment. In Norway, for instance, the Ministry of Environment has given its permission to start underground copper mining in the Finmark and establish a submarine tailing deposit in the Repparfjord. This project is highly controversial for its impact not only on traditional Sámi reindeer herding but also on the fragile environment of the Repparfjord and the local Sámi fisheries. In Botswana, indigenous peoples are concerned about the expansion of mineral prospecting and hydraulic fracking activities in the Okavango World Heritage Site, the Kgalagadi Transfrontier Park, and the Central Kalahari Game Reserve. In Ecuador, the State attempts to expand the oil frontier towards the centre and south of the Amazon region where there are important protected areas and ancestral territories. In Turkana, in north western Kenya, indigenous peoples are questioning the process by which 40,000 acres of community land were privatized and transferred to private developers for a large wind mill project without any consultation.
At the same time, it seems that some governments are not only eager to develop these industries but even to make it easier and more attractive to new mining and logging companies by amending national legislation in a more corporate friendly way which threatens to undermine indigenous peoples’ rights. In the Russian Federation, the prospect of indigenous peoples to have their lands protected as “Territories of Traditional Nature Use” (TTNU) has decreased due to changes in the legislation as well as to actions by regional authorities and the judiciary in favour of extractive companies. In Mexico, a new Guide to Land Occupations” published by the Ministry of Finance has been dubbed “the Guide to Land Grabbing” since it justifies land grabbing on the basis that it is promoting the development of the mining sector. In Peru, the government follows a logic of “administrative simplification” in favour of investment, ignoring rights such as prior consultation and even violating rights to property, possession and community autonomy over the use of land; recent legislation has furthermore simplified the procedural steps required for obtaining a mining concession, for requesting a Global Environmental Certificate for an environmental impact assessment and for authorizing licences over water and forest resources. In Bolivia, three new supreme decrees will negatively affect indigenous peoples’ rights when it comes to receive compensation for the impact of hydrocarbon extractive activities on their territories; get accurate, prompt and appropriate information from the State with regard to projects; and be provided with specialist advice when taking part in a consultation. Finally, it establishes that operators have the authority to implement their projects without any interruption and that this can be guaranteed, if necessary, by the use of the Security Forces.
In order to protect their land rights, indigenous peoples use different strategies. Many are trying to map their territories. In Indonesia, more than 600 indigenous territory maps covering a total of 6.8 million ha have been submitted to the Ministry of Environment and Forestry. The question that remains to be solved is the legal validity of these maps. In Malaysia, indigenous peoples challenge development aggression through press statements, police reports, complaints and ultimately filing cases in court. In Laos, Tarieng people in Xekong province have even used social media to report their concerns at the environmental impact on health being caused by extractive industries.
Human rights violations and conflicts in indigenous areas
As in previous years, several indigenous leaders involved in the defense of territorial rights have been arrested (Russian Federation), harassed (Burma), threatened (the Philippines) or murdered (Nicaragua, Brazil, the Philippines). Repression by military and paramilitary forces in conjunction with the eviction of people from their lands has also taken its deadly toll (Burma, the Philippines).
Scarcity of resources continued to fuel conflicts between farmers and pastoralists in Burkina Faso and Tanzania. In Kenya, more than 100 lives were lost in a territorial boundary conflict between the Turkana and the Pokot (both pastoralist groups). The conflict was sparked off by the discovery of oil deposits in an area which both peoples claim to be part of their territory.
Anti-terror law is used as a tool of repression and a threat to indigenous peoples’ rights in countries like Ethiopia where indigenous activists have been arrested and face extended prison sentences. Muslim indigenous peoples are being targeted in several countries. In the Xiniang-Uyghur Autonomous Region, China, two bloody events—a bomb blast and an attack on a coal mining facility— have resulted in the imposition by the Chinese government of severe rules and controls on the Muslim Uyghur and their religious practices. In Burma, the persecution of the Rohingya by security forces continues and tens of thousands Muslim Rohingya have had to flee from Burma. In Mali, ongoing fighting, suicide bombings and criminal attacks as well as interethnic clashes between Tuareg and Fulani communities have left the population in northern and central Mali in a situation of lawlessness and insecurity.
The situation of indigenous women and youth
The situation of indigenous women continues to be alarming and in the words of the UN Special Rapporteur on the rights of indigenous peoples “indigenous women experience a broad, multifaceted and complex spectrum of mutually reinforcing human rights abuses” stemming from different sources of discrimination and marginalization. In its Concluding Observations on Russia, CEDAW expresses its concerns about indigenous women’s access to land and livelihood, their limited representation in local decision-making bodies and the lack of disaggregated data on their situation. These concerns are validated by several country reports in this book.
While indigenous women experience a series of human rights abuses, incidents of rape, gang rape and attempted rape are often mentioned as exceeding all other forms of violence (Uganda, Bangladesh). The majority of the perpetrators are from a non-indigenous background, and the authorities (police, army) are often involved. The victims’ access to justice is frequently curtailed by a strong culture of impunity. An example of this is from Guatemala where the case against former members of the military accused of raping and enslaving indigenous Q’eqchi’ women from Alta Verapaz department during the armed conflict has made significant progress with a conviction forthcoming at the start of 2016. This case has been emblematic in that it is the first time that former soldiers have been brought to justice for such crimes, thus opening up the possibility of thousands of women victims of the internal armed conflict obtaining justice and redress.
MDGs have often been criticized for not being culturally adapted to indigenous peoples. A blatant example of this is the new “No Home-Birthing Policy” of the Philippines’ Department of Health that prohibits and penalizes home births assisted by traditional birth attendants. Instead, it requires pregnant women to give birth in hospitals and lying-in centers. This policy is clearly intended to fulfil Goal no. 5 “Improve maternal health” and reduce maternal mortality ratio by increasing the “Proportion of births attended by skilled health personnel”. But in the case of indigenous women, this policy may well have the opposite effect and increase their maternal and neonatal mortality. Indeed, public birthing facilities are few and far between in rural areas and pregnant indigenous women will therefore be forced to travel long distances just to give birth in the nearest health facility, where they furthermore will have to deal with discriminatory attitudes and the insensitivity of health care providers towards indigenous peoples.
Some country reports do, however, note a few positive developments: in Tanzania, an emerging change in attitude towards female genital mutilation (FGM) is the result of an ongoing national and community awareness raising conducted by indigenous peoples’ organizations to highlight the health and social risks linked with FGM. Secondary education scholarships for girls have provided a safe haven for likely victims. In India, the already mentioned Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill makes it an offence to assault or sexually exploit an indigenous woman. Intentionally touching an indigenous woman in a sexual manner without her consent, or using words, acts or gestures of a sexual nature, will also be considered an offence.
In Canada, the Truth and Reconciliation Commission’s Calls to Action include supporting the call for a national inquiry into the crisis of missing and murdered indigenous women and girls (see The Indigenous World 2015, p. 51). The new federal government has announced that an inquiry will be held as soon as possible and the new Minister of Indigenous Affairs has already consulted indigenous peoples on how such an inquiry should be developed. The formal inquiry is to commence in 2016.
Only two country reports (Kenya and Burkina Faso) deal with the important— and probably quite common— issue of the marginalization and lack of opportunities for indigenous youth and its consequences. In Kenya, 80% of the 2.5 million youth are unemployed and indigenous youth form a large proportion of this sector of Kenyan society. Given the deplorable situation in Kenya’s north-eastern regions and minimal economic opportunities for Kenyan youth in general, they have become easy targets for extreme radicalization and home-grown agents of terror and violent conflicts. Similar conditions in Burkina Faso are characterized as ever more favorable to extremism of all kinds. Much has yet to be done to address this urgent difficulty. Another critical issue related to youth and children was taken up by the last UNPFII session in a thematic discussion on self-harm and suicide among children and young people. It was, inter alia, noted that indigenous communities frequently see significantly higher youth suicide rates than among the general population.
Forging new alliances
An interesting and promising development at the level of indigenous communities is the strengthening of alliances at the national level between different indigenous groups with the purpose of gaining more political leverage. In Namibia, efforts have been made during 2015 to establish a Namibian Indigenous Peoples Advocacy Platform comprising Himba, Nama and San representatives. In Thailand, the first assembly of the national Council of Indigenous Peoples was convened at the end of 2014. In Panama an alliance (the Unity Forum) has been formed between all the 12 traditional congresses and councils of the seven indigenous peoples of the country with the aim of working for the titling, defense and regularization of their territories. In Venezuela, the indigenous movement is organizing and mobilizing right across the country in demand of indigenous peoples’ human rights. In the Philippines some 600 indigenous peoples and peasants from northern Luzon travelled to Manila to meet with more than 1,300 indigenous peoples and advocates from other regions for a national convergence for the assertion of the right to self-determination.
In Bolivia and Peru, indigenous communities have taken a further step by declaring themselves autonomous. In Bolivia, the Guarani municipality of Charagua approved by referendum its status as a native Peasant Indigenous Autonomy, overcoming the social diversity and political tensions that exist within the municipality, which is the country’s largest (71,745 km2) and inhabited by 70 Guaraní communities. In Peru, the Government of the Wampis nation was formed in November 2015 and is the first autonomous indigenous government in the country. This “historic decision” has been taken “in part as a strategy for territorial defense and as a response to the efforts to divide us into communities”.
If such alliances do lead to increased political leverage, it might be an important step towards gaining the strength to demand accountability from States and governments. As reported from Indonesia, governments tend to remember and use the term “indigenous peoples” only when it is beneficial. However, when it comes to fulfil and implement the commitments they have made internationally and nationally, they tend to forget or totally disregard indigenous peoples’ rights.
This why it is important that indigenous peoples at the international level keep advocating for indigenous rights and monitor their respective governments’ declarations and actions, and at the national level form strong alliances that are able to hold their governments accountable and make them fulfill their duty towards indigenous peoples. Only then will it be possible to start bridging the implementation abyss.
Marianne Wiben Jensen
Copenhagen, April 2016
This article is part of the 30th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2016 in full here