Statement by Victoria Tauli-Corpuz,
Special Rapporteur on the rights of indigenous peoples
69th session of the General Assembly
Item # 66
20 October 2014
Your Excellencies, Distinguished delegates, Ladies and gentlemen,
I have the honor to present today my first report to the General Assembly. I would like to start by expressing my gratitude to the numerous States, indigenous peoples, and others for the support they have provided as I have carried out my mandate accorded to me by the Human Rights Council over the past four months.
In my report, given the focus of the General Assembly in reviewing and adopting the post 2015 development agenda, I have provided some thoughts on this crucial issue for indigenous peoples in the hopes of guiding Member States as they reflect further on development priorities. To that end, I have presented an overview of the human rights framework and concerns related to the development and well-being of indigenous peoples. These human rights standards should be viewed in light of the basic principles of non-discrimination and equality undergirding all human rights and the cross-cutting right of self-determination contained in Article 3 of the UN Declaration on the Rights of Indigenous Peoples. This Article recognizes the right of indigenous peoples to self-determination which includes their right to freely determine their political status and freely pursue their economic, social and cultural development. I have also included lessons learned and have identified obstacles and advances in achieving the economic, social and cultural rights of indigenous peoples. Finally, I offer some recommendations for addressing these concerns in the context of policies and strategies to reach global Sustainable Development Goals and achieve the Post-2015 development framework which will be agreed upon UN member-states in September 2015.
Right to Development of indigenous peoples
Indigenous peoples have come a long way since the adoption of ILO 107 on ‘indigenous and tribal populations’ in the late 1950s. ILO 107 (1957) was the first attempt to codify international obligations of states with respect to indigenous peoples and called on states to assist indigenous peoples to fully integrate into the national community, with the goal of reaching development and equality. In the 1970s and 1980s, indigenous peoples’ representatives challenged the assimilationist content and integrationist approach of ILO 107 and worked for the adoption of ILO Convention 169 (1989) which rectified this weakness. Article 7 of this Convention states that indigenous and tribal peoples have the right to “decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control over their economic, social and cultural development”.
In 1992, the UN Conference on Environment and Development adopted the Rio Declaration on Environment and Development. Principle 22 of this Declaration acknowledged the vital role of indigenous peoples to environmental management and development because of their knowledge and traditional practices. This principle further stated that “...States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.” Agenda 21 contained Chapter 26 “Recognizing and Strengthening the Role of Indigenous People and Their Communities”. This led to the inclusion of indigenous peoples as one of the 9 major groups which engaged in the various mechanisms and processes around sustainable development.
The landmark UN Declaration on the Rights of Indigenous Peoples was adopted in 2007 by the UN General Assembly after more than 20 years of drafting and negotiations. This contained several articles on the right to economic, social and cultural development of indigenous peoples. Foremost among these are Article 3 which I referred to earlier and Article 23 which affirmed that, “Indigenous peoples have the right determine and develop priorities and strategies for exercising their right to development…”
The most recent global process related to indigenous peoples, the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples (WCIP) held here in this same hall last 22-23 of September 2014, contains several paragraphs on this same concern. Paragraph 34 of the Outcome Document (A/69/L.3) states, “We recognize the significant contribution of indigenous peoples in the promotion of sustainable development, in order to achieve a just balance among the economic, social and environmental needs of present and future generations…” Additionally, paragraph 37 affirmed the importance of Article 23 of the UNDRIP, mentioned above. It further stated “…we commit ourselves to giving due consideration to all the rights of indigenous peoples in the elaboration of the post-2015 development agenda.”
Economic, social and cultural rights as they apply to indigenous peoples
I need to stress that States duties to respect, protect and fulfill indigenous peoples’ economic, social and cultural rights arises as an integral element of their duties under the International Covenant on Economic, Social and Cultural Right and not solely on their commitment to specific instruments on indigenous peoples’ rights such as the Declaration or ILO 169. In the context of development, contemporary standards strive to address discrimination while ensuring respect for their right to define and pursue their self-determined development paths. The right to culture, in the context of indigenous peoples, is contained in Articles 11 to 16 of the Declaration. The Declaration has a remedial purpose and in the words of the previous Rapporteur, James Anaya, “aims at repairing the ongoing consequences of the historical denial of the right to self-determination“. Since non-discrimination has an individual and a collective dimension, special measures should not only address the socio-economic gaps between indigenous and non-indigenous sectors of society but also remove discriminatory barriers to the exercise of the rights to self-determined development and cultural integrity.
Lessons learned from current efforts to achieve the economic, social and cultural rights of indigenous peoples
Huge challenges in the implementation of the economic, social and cultural rights of indigenous peoples remain. Sadly, this implementation gap is reflected by the failure of the international community to use the Millennium Development Goals as a vehicle to overcome discrimination and achieve substantial equality for indigenous peoples in the context of development. According to the Committee on the Elimination of Racial Discrimination, special measures are integral to the principle of non-discrimination. Unfortunately, indigenous peoples were not formally involved in the formulation of the MDGs and neither the goals nor the targets and indicators have any reference to the situation of indigenous peoples. Based on available data regarding social and economic conditions of indigenous peoples, it is evident that the MDGs did not address or resolve their social and economic disadvantage.
In my report, I lay out a non-exhaustive list of obstacles and advancements to the full realization of the rights of indigenous peoples to development. Numerous institutions have endorsed that strengthening indigenous peoples’ own strategies for sustainable development is not only key to achieving their economic, social and cultural rights but it is also indispensable element of the global efforts to achieve sustainable development. Programs that maximize indigenous self-determination tend to perform better than those controlled by the State or other external actors.
Unfortunately, and as described by the previous Special Rapporteur, the externally designed and managed model for development for indigenous peoples, especially in the area of extractive resources, is still the “standard scenario”. I believe that at a minimum, third party development initiatives should be developed within the framework of State regulatory regimes which adequately protect indigenous peoples’ rights, ensure participation of and respect for the rights of indigenous peoples in strategic planning at national and local levels in activities related to resource extraction and development. Mechanisms should be put in place to enforce corporations’ compliance with their responsibility to respect and protect indigenous peoples’ rights and provide remedies when these rights are violated, perform due diligence to assess and avoid any adverse impacts, and ascertain that fair and adequate consultation and negotiation procedures aimed at obtaining free, prior and informed consent.
In this regard, I welcome indigenous peoples’ efforts to participate in the processes of the Working Group on the issue of human rights and transnational corporations and other business enterprises and the Forum on Business and Human Rights. I hope that indigenous peoples participation will also be ensured at the sessions of the future open-ended intergovernmental working group to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations.
I remain deeply concerned that the particular situation of indigenous peoples often remains invisible within national statistics. In order to devise adequate policy responses to address inequalities and to monitor the effectiveness of measures to overcome discrimination, the existence of relevant information is a precondition. In this regard, I commend the efforts of the Economic Commission on Latin American and the Caribbean which has established a comprehensive database which provides socio-demographic data on indigenous peoples, disaggregated by sex and age, as well as data on internal migration, health, youth and territorial distribution of inequalities. The basis of much of this work is the inclusion of an “indigenous identifier” into the 2000 census round of most countries in Latin America. There is a need to further develop indicators that capture essential aspects of self-determined development, such as status and trends of indigenous languages, security of tenure with regards to lands, territories and resources and the recognition of indigenous customary law and autonomous governance institutions.
An essential element of overcoming discrimination and achieving economic, social and cultural rights of indigenous peoples is the design and delivery of adequate social services, especially within the education and health sectors. Culturally appropriate services are related to higher achievement outcomes. Development strategies must take into account indigenous peoples’ languages, traditions, livelihood strategies and autonomous institutions. One way to accommodate indigenous peoples’ cultures is to include them in the design, programming and implementation of development efforts.
Additional special measures to protect the most vulnerable individuals and groups are also needed in the area of labor rights. I would particularly draw the attention to the precarious situation of numerous indigenous women, particularly from Latin America and Asia who serve as domestic workers either in their home countries or as migrant workers. In this context, I welcome the entry into force of the Domestic Workers’ Convention (ILO No. 189) in September 2013. I also draw the attention to indigenous women who still face additional gender-based discrimination despite the strong and crucial roles played by them in food production, biodiversity conservation, and transmission of languages, culture and knowledge, among many others. As I noted in my first report to the Human Rights Council (A/HRC/27/52), I will place special emphasis on the issues facing indigenous women and make special efforts to work closely with them to ensure that their concerns are addressed consistently in my work.
It is necessary for States to consult with indigenous peoples and ensure their participation before adopting legislative or administrative measures or projects that affect them. Reviews of UN Development Assistance Frameworks (UNDAF) which constitute the main framework for UN-system development assistance at the country level have concluded that indigenous peoples had little participation and that most frameworks do not provide for disaggregated data and benchmarks related to indigenous peoples’ development. The implications of this omission are simple and far-reaching: if indigenous peoples’ needs and concerns are not reflected in these overall frameworks established by governments and supported by the UN-system and other bi and multilateral donors, they may simply be excluded from development efforts and their rights may even be further undermined. It is therefore important for me to reiterate what has been mentioned several times in the recommendations of the UN Permanent Forum on Indigenous Issues to ensure that the UNDAF ensures inclusion of indigenous peoples development priorities. The participation of indigenous peoples’ representatives when this is being formulated should also be facilitated. I also would like to urge the OECD-Development Assistance Committee (OECD-DAC) to likewise include respect for indigenous peoples rights as one of the elements of their development assistance framework, just as they have included gender, labor and child rights. These are some of the concrete steps in ensuring that indigenous peoples’ rights and priorities on development are integrated in all present and future development decisions and agreements.
Let me conclude by underlining the unique opportunity that the global community has to use the design, implementation and monitoring processes related to the Sustainable Development Goals to address the persistent discrimination against indigenous peoples, as individuals and as collectives with regard to access to and adequacy of development assistance. Overcoming discrimination against indigenous peoples and indigenous women in particular, will require
concerted efforts and in many cases, special measures.
The universality of the proposed Sustainable Development Goals is a unique opportunity to address existing inequalities between indigenous and non-indigenous sectors of the population in all countries across the globe. The processes to define, implement and monitor the Sustainable Development Goals should be used as a vehicle to address indigenous peoples’ aspirations for self-determined development and achieve equality in development outcomes. It is also crucial that an agreement is reached on how the means of implementation of sustainable development goals will be included in the Post-2015 development agenda. This means looking at the financial and technology development and transfer issues. The Financing for Development (FFD) processes as well as the processes related to technology issues should also allow for more active engagement of indigenous peoples’ representatives.
One month after the adoption of the Outcome Document on the World Conference, I remain committed in my role as Special Rapporteur to monitor closely how the United Nations is implementing the WCIP Outcome Document. I will continue to discuss with high level officials and staff of the UN bodies, programmes, agencies and funds to offer my help in making institutions more responsive to indigenous peoples. I also take the opportunity to thank the Member States, indigenous representatives, UN officials and staff who worked to have this document drafted and adopted and warmly congratulate you on setting aside long¬standing differences to agree on this document. While it is not perfect, it is a big stepping stone in the upward struggle to get indigenous peoples’ collective and individual human rights respected, protected and fulfilled.
As I work to carry out this mandate, I do so with optimism for a better future for indigenous peoples, encouraged by positive developments in many places, and yet concerned by the reality of ongoing struggles and violations of indigenous peoples throughout the world. I reaffirm my strong commitment to my role as Special Rapporteur, and acknowledge with humility the responsibility it represents.
I thank you all for your kind attention.
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