Conclusions and recommendations of the Special Rapporteur on indigenous peoples'

A/HRC/4/32

Since the Special Rapporteur’s mandate was established, it cannot be said that the human rights situation of indigenous people has so far changed substantially. Progress has been made in some areas, especially in the legislative and judicial spheres. The human rights of indigenous people have acquired greater visibility in some countries as well as internationally, largely thanks to the work of various United Nations bodies, which has culminated for the time being in the Human Rights Council’s adoption of the Declaration on the Rights of Indigenous Peoples. In some countries it has been possible to identify good practices leading to the consolidation of the human rights of these people, whose claims and proposals are being expressed ever more vocally, owing to the high degree of social, and sometimes political, mobilization.

These advances, however, have encountered numerous obstacles and in some cases also setbacks. In many spheres, there is still a lack of understanding about indigenous rights, linked to the persistence of prejudices and discriminatory, not to say racist, attitudes. More disturbing is the opposition displayed by various national and international private economic interests to the full enjoyment of indigenous rights. Those interests are centred on land ownership and the exploitation of natural resources, especially forestry, water and subsoil resources. They often collude with the structures of political power to impede progress with regard to indigenous people’s human rights.

This the reason for the implementation gap between legislation, public institutions and actual practice at the local level, and why indicators of social and economic well-being of the vast majority of the indigenous population, especially women, continue to be well below national averages. In order to address this pattern of inequality and injustice that generates permanent human rights violations, indigenous people resort to different forms of social mobilization that, in turn, often provoke the use of public force, and so incur further violations of their rights. This has given rise to patterns of criminalization of indigenous social protest, making it harder to achieve a negotiated and democratic solution to their legitimate demands.

Globalization and environmental degradation contribute to the increasing involvement of indigenous people in migratory flows, their growing urbanization and the progressive modification of their cultural and social identity. These processes pose new challenges for the protection of human rights and for the framing of public policies, which require proactive and affirmative approaches, especially in the light of the specific problems facing indigenous women and children. Failure to address the structural causes of these situations will mean that the promises of the Millennium Development Goals will not become a reality for indigenous people, nor will they fully enjoy their human rights.

The Council now has the responsibility and the opportunity to take new steps towards international protection of the human rights of indigenous people. States need to display greater political will and capacity to construct efficient mechanisms and structures that will genuinely promote, rather than merely simulate, effective respect for the human rights of indigenous people in their countries. The courts must actively defend those rights and transcend the legal niceties so long invoked to deny indigenous people their rights. Civil society organizations, as well as political parties, must push for the human rights of indigenous people to be placed on their agendas for social and political action. In conclusion, indigenous communities and organizations, which have played such an outstanding role in the defence and promotion of their human rights, must reassess their objectives and strategies, strengthen and consolidate their alliances, and involve themselves in the processes required to build genuine democratic and plural societies.

Recommendations

A. Recommendations to Governments

1. Governments should multiply their efforts to promote effective changes in law and policy in implementation of the Special Rapporteur’s recommendations, in compliance with international norms recognizing the rights of indigenous peoples.
2. Governments should publicize and disseminate the Special Rapporteur’s reports and recommendations among government institutions, civil society and indigenous peoples. Production of popular versions in various indigenous languages should be seriously considered.
3. Governments should intensify their efforts to train public officials in the rights of indigenous peoples, taking into account the Special Rapporteur’s reports and recommendations. The training of judges, prosecutors and public defenders based on these reports should be prioritized.
4. The Governments concerned should establish permanent mechanisms to follow up on the recommendations of the Special Rapporteur’s country reports. The mechanisms can include the designation of focal points to promote and coordinate efforts of different government departments and agencies such as interdepartmental working groups or specific units.
5. Governments are encouraged to undertake periodic evaluations of the state of implementation of the Special Rapporteur’s recommendations and to publicize the results.
6. Governments should promote the involvement of indigenous peoples in the preparations for and carrying out of the Special Rapporteur’s missions. Appropriate mechanisms should be put in place to promote the active participation of indigenous peoples in the implementation of the Special Rapporteur’s recommendations.
7. The Governments of Mexico and Guatemala are encouraged to continue the systematic follow-up to the recommendations initiated in close collaborations with OHCHR and indigenous peoples and organizations. The Governments of other countries that have been the object of an official visit by the Special Rapporteur are also encouraged to seek the technical assistance of OHCHR and international agencies in the implementation of the recommendations included in the reports on these visits.

B. Recommendations to other State institutions

National parliaments, as well as national human rights institutions, are encouraged to take an active role in monitoring the implementation by all relevant actors of the Special Rapporteur’s recommendations.

C. Recommendations to indigenous peoples and civil society

1. Indigenous peoples and organizations, NGOs, academic institutions and other civil society actors are encouraged to strengthen their cooperation in order to foster the implementation of the Special Rapporteur’s recommendations. They are also encouraged to use best practices from other countries concerning the establishment of permanent mechanisms and periodic initiatives to monitor the state of implementation.
2. Indigenous peoples and their support organizations are encouraged to strengthen their involvement in the Special Rapporteur’s general activities, including involvement in his country visits and dissemination of his reports.
3. Public media are encouraged to pay increased attention to the Special Rapporteur’s reports and visits, and to monitor the state of implementation of his recommendations.

D. Recommendations to OHCHR

1. The Special Rapporteur invites OHCHR to incorporate, when applicable, the recommendations of his country and thematic reports in its programme activities, particularly in relation to its field presences.
2. OHCHR should continue its assistance to governmental institutions and civil society organizations to ensure follow-up to the Special Rapporteur’s reports, taking into account the best practices described in this report.

E. Recommendations to international agencies

1. International organizations and agencies, including international financial institutions, should intensify their efforts to implement the Special Rapporteur’s recommendations.
2. United Nations country teams should designate a focal point to ensure the promotion and coordination of their activities in implementation of the Special Rapporteur’s reports.
3. International organizations and agencies should take into account the recommendations included in the Special Rapporteur’s thematic reports in their programming in areas relevant to the rights of indigenous peoples. The Permanent Forum on Indigenous Issues Inter-Agency Group should also include these reports in the discussions on the topics analysed at the Forum’s annual sessions.

F. Recommendations to the international community

International donors should support indigenous peoples and their support organizations to ensure their involvement in the Special Rapporteur’s visits and other activities, as well as in their efforts to promote the implementation of his recommendations.

A/HRC/6/15

In the light of the above considerations, the Special Rapporteur submits the following recommendations to Governments and, in particular, agencies responsible for social policy and development; United Nations agencies and international organizations; international financial institutions and aid agencies; domestic and international non-governmental organizations; and indigenous organizations and the indigenous peoples themselves.

A. General recommendations

1. The development and implementation of public policies must be guided by the rights enshrined in the United Nations Declaration on the Rights of Indigenous Peoples, ILO Convention No. 169 and other international instruments and by the jurisprudence of the human rights bodies.
2. The objectives of social and development policies and programmes designed for indigenous peoples must be to promote respect for and guarantee compliance with the human rights, individual and collective, of these peoples. Accordingly, these programmes and policies must be formulated and evaluated in terms of their contribution to meeting that goal. This necessitates the development, in cooperation with indigenous peoples, of operational criteria which draw together the activities of the various stakeholders involved, and of indicators to measure the impact of those activities.
3. On no account should development activities be allowed to run counter to the general principles of the human rights of indigenous peoples. Accordingly, there must be a requirement for the conduct of social, cultural and environmental impact studies for projects to be carried out in the lands and areas occupied by indigenous peoples.
4. Social and development policies and programmes relating to indigenous peoples must be based on the free, prior and informed consent of the communities concerned. These communities must be effectively involved in identifying priorities and in designing, implementing and evaluating the development activities intended to help strengthen their capacities and those of their organizations. Priority must be given to development initiatives identified and defined by the indigenous peoples themselves.
5. The design of social and development policies and programmes intended for indigenous peoples must take due account of the individual and collective rights situation of these communities involved, with a view to uncovering the underlying causes of discrimination, exclusion and marginalization. In this process, efforts must be made to identify the holders of these rights, with special attention to the vulnerable and marginalized groups within the indigenous communities, and also the relevant duty bearers.
6. Provision must be made in the regular budgets of States for social and development policies and programmes targeted at indigenous peoples. A rights-based budget approach must be followed, whereby decisions at all stages of the budget process are taken in keeping with the principles of transparency, accountability, non-discrimination and participation.

B. Recommendations to donors and international agencies

1. Those engaged in cooperation work should refrain from supporting programmes and projects which, either directly or indirectly, are or could be conducive to the violation of the rights of indigenous peoples in the countries receiving development aid.
   
2. Cooperation partners should work directly with indigenous communities and organizations.
   Development cooperation partners should ensure that their activities help strengthen dialogue and cooperative relations between indigenous peoples and the Governments of the countries in which those peoples live, identifying priority areas and the necessary resources to ensure the effective exercise of the rights of indigenous peoples.
   
3. Development cooperation partners should give particular attention to strengthening the capacities of government and civil-society bodies to ensure the effective exercise of the rights of indigenous peoples, including by supporting the reforms necessary for the incorporation of these rights in legislation and in public policies.
   
4. At the same time, steps should be taken to strengthen the mechanisms for political participation and accountability which support efforts by indigenous peoples to identify their priorities and exercise their rights.

C. Recommendation to the Office of the United Nations High Commissioner for Human Rights and the United Nations Development Programme

The principles underlying the human rights-based approach to indigenous development must be applied in such a way that they can be drawn on by those responsible for implementing public policy and cooperation, as well as by the indigenous peoples themselves, in the development, preparation, implementation and evaluation of policies, programmes and projects for the benefit of these peoples. The Special Rapporteur recommends that the Office of the High Commissioner and UNDP, as key players in the process of promoting a rights-based approach to development, conduct studies of good practices and prepare a manual on the use of this approach in development activities involving indigenous peoples.

Report on the situation of the rights of indigenous peoples in Asia

A/HRC/6/15/Add.3

In recent years the plight of indigenous peoples in Asia has started to become a specific issue of concern in the international human rights agenda, as well as in domestic legislation and policies. Indigenous issues are increasingly the object of specific attention by several Asian States in key areas such as land rights, cultural protection, autonomy and self-government and development policies, thus signalling an important change of mentality regarding the recognition of cultural difference and its human rights implications. However, there is still an important implementation gap with regard to existing constitutional and legal provisions, and much remains to be done in order to mainstream indigenous rights in policies and the institutional machinery at the national level. These developments are overshadowed by the human rights violations still suffered by indigenous peoples in some countries of the region as a result of internal conflicts and insensitive official policies.

Indigenous peoples in Asian countries face patterns of discrimination and human right abuses similar to indigenous peoples in other parts of the world. Some of the most serious violations are related to the lack of effective protection in domestic laws and policies regarding indigenous rights over their traditional territories, lands and natural resources, as well as to their right to participate in decisions affecting these lands and resources. This has led to widespread violations in practically all countries of the region as a result of land-grabbing and corruption, forced displacement associated with the extension of plantation economies, the construction of megaprojects, and particularly dam construction and mining, and other State development policies.

Forest peoples are particularly affected by these dynamics of dispossession and removal, as the forests are quickly disappearing as a result of Government-promoted and illegal logging and other State policies, often with disastrous environmental effects. Pastoralist communities similarly confront the loss of their distinct livelihoods and cultures, essential to nomadic herding, which is frequently deemed “backward” and “unecological” in official discourse and policy.

While militarization and State repression are frequently the source of indigenous peoples’ human rights violations in many parts of the world, the recurrent and widespread character of these abuses in Asian countries gives rise to special concern. Decades-long civil conflicts, insurgency movements, political crimes, and other abuses committed in the name of the struggle against terrorism or secessionism have taken a deadly toll in indigenous and tribal communities. Massacres, killings of social activists and human rights defenders, torture, sexual violence, and displacement are still daily realities for many such communities. While the Special Rapporteur acknowledges the complexity of the various contexts in which these violations occur, the seriousness of these violations leads to the conclusion that the indigenous peoples are widely regarded in many countries as “backward”, second class citizens.

A number of constructive arrangements have been put in place in order to accommodate ethnic diversity or to find a peaceful solution to conflicts which have lasted for decades. While these initiatives provide important examples of ways in which the principles of State integrity and autonomy can be combined in the Asian context, a common denominator of ongoing experiences is the lack of implementation of existing legal and political arrangements. Militarization, induced migration, unequal development policies, and resulting human rights abuses are questioning the spirit of such arrangements, while fuelling the conflicts they seek to prevent.

As elsewhere in the world, the indigenous women of Asia experience accumulated layers of discrimination and marginalization. They are subject to human rights violations as a result of longstanding conflicts and the impoverishment of their communities. Sexual violence, trafficking and labour exploitation are daily realities for many Asian indigenous women, a problem that is just beginning to be fully understood.

Recommendations

(A/HRC/6/15/Add.3)

1. The protection of the rights of indigenous peoples is a human rights imperative that cannot be subordinated to, nor is it contradictory with, the objectives of national unity or development. The Special Rapporteur calls upon Asian States to give priority attention to indigenous issues, regardless of the constitutional and legal status afforded to these groups in their domestic systems, taking into consideration international norms as well as the positive examples found in comparative legislation in Asia and other parts of the world.
2. Asian States should continue their efforts to enter into dialogue with indigenous peoples in order to work out constructive legal and political arrangements, within a spirit of mutual respect, autonomy and self-determination. These demands should not be repressed or criminalized, and their basic human rights should be fully respected at all times, including in situations of conflict.
3. National legislation in Asian countries should incorporate indigenous peoples’ property and use rights over communal lands, forest areas, pastures, and other natural resources, with due regard to indigenous customary laws, traditional lifestyles, and cultural values. Where such legislation exists, renewed efforts should be made in order to make indigenous rights effective, and special emphasis should be put on the demarcation and titling of indigenous lands. The systematic removal of indigenous peoples from their traditional lands as a public policy should be halted, and such removal of indigenous peoples from their traditional lands should be regarded as a last alternative and in cases of utmost necessity, and under condition that they be fully compensated.
4. Indigenous peoples should be involved in decision-making at all levels in the countries in which they live. They should participate in the design and implementation of all policies that may affect them directly, particularly with regard to development projects taking place in their lands and territories.
5. Asian countries should actively promote the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. Following the example of Nepal, consideration should be given to the prompt ratification of ILO Convention No. 169 on Indigenous and Tribal Peoples, particularly by those States that are already parties to the previous ILO Convention, No. 107.
6. International organizations and agencies, as well as international financial institutions, should mainstream indigenous rights into their programmes and activities in Asian countries, on the basis of international norms and their own policy guidelines in this area, irrespective of the level of recognition of these rights in domestic legislation and policies. OHCHR country and regional offices in Asia should further strengthen in their programmes of work the rights of indigenous peoples, particularly of indigenous women. UNDP and ILO should continue their efforts to promote their policies on indigenous peoples. The World Bank, the Asian Development Bank and bilateral donors should ensure that their safeguards and guidelines in relation to indigenous peoples are fully respected in their Asian projects.

Source : http://www2.ohchr.org/english/bodies/chr/special/visits.htm