|Statement of Special Rapporteur on the Rights of Indigenous Peoples to the UN General Assembly|
General Assembly Seventy-First Session
New York, 17 October 2016
I have the honor to present today my third annual report to the General Assembly. I would like to start by expressing my gratitude to the numerous States, indigenous peoples, and others, and in particular to the Office of the High Commissioner for Human Rights, for the support they have provided as I have carried out my mandate.
Areas of work
Over the past year, I have engaged in a range of activities within my mandate. The various activities I have carried out can be described as falling within four, interrelated areas of work. I undertake thematic studies; conduct country visits; promote good practices; and address communications to Governments on alleged cases of human rights violations. In this presentation to the General Assembly, I will focus on my thematic work and refer to my three country visit reports from the past year.
In my thematic report which I am presenting to the General Assembly today (A/71/229), I have chosen to explore how conservation measures affect indigenous peoples. While protected areas for conservation have the potential of safeguarding the biodiversity for the benefit of all humanity, these have also frequently been associated with human rights violations against indigenous peoples in many parts of the world.
The establishment of national parks and conservation areas has resulted in serious and systemic violations of indigenous peoples' rights through expropriation of their traditional lands and territories, forced displacement and killings of their community members, non-recognition of their authorities, denial of access to livelihood activities and spiritual sites and subsequent loss of their culture. Indigenous peoples who have been evicted from their traditional lands suffer marginalisation and poverty, and are commonly excluded from redress mechanisms and reparation for the harm they have endured. I deeply regret that I continue to receive complaints about violations against the rights of indigenous peoples in the name of conservation.
In my report, I charted the favorable legal developments as well as the commitments and resolutions taken to advance a human rights-based approach to conservation. However, I have found that practical implementation and advancement of this human rights-based approach remains sorely lacking. The report presents recommendations on how indigenous peoples' rights can be better protected in conservation policy and practice.
Traditional indigenous territories encompass around 22 per cent of the world's land surface and they coincide with areas that hold 80 per cent of the planet's biodiversity. There is increasing recognition that the ancestral lands of indigenous peoples contain the most intact ecosystems and provide the most effective and sustainable form of conservation.
Past conservation practices were characterised by the failure to consult with indigenous peoples when Government authorities decided to declare protected areas. Government decisions to declare areas protected were often motivated not only by an interest to protect nature but also to promote tourism to such areas.
The traditional lands of indigenous peoples are being declared protected for purposes of conservation at a rapidly increasing rate. Current estimates indicate that 50 per cent of protected areas worldwide have been established on lands traditionally occupied and used by indigenous peoples and in some regions this territorial overlap is higher, such as in Central America, where it reaches around 90%. In this regard, it is important to underline that studies have demonstrated that the territories of indigenous peoples who have been given land rights have been significantly better conserved and protected against deforestation than the adjacent lands.
In practice however, for indigenous peoples the consequences of the declaration of protected areas commonly entailed expropriation of their traditional territories and loss of land rights as well as their exclusion from management and territorial governance. The loss of the guardianship of indigenous peoples has often placed their lands under the control of Government authorities who have lacked the capacity and the political will to protect the land effectively. It is particularly disconcerting that in many countries where indigenous peoples have not been awarded land rights over their traditional territories there are increasing incursions of extractive industries, agribusiness expansion and mega-infrastructure development, even inside protected areas.
While there is increasing evidence that indigenous peoples' traditional lands and territories hold highly preserved ecosystems and biodiversity rates, the important role played by indigenous peoples as environmental guardians still fails to gain due recognition. According to the United Nations Environment Programme World Conservation Monitoring Centre, in 2014, only less than 5 per cent of protected areas worldwide are governed by indigenous peoples and local communities.
Under international human rights law, indigenous peoples have the right to self-determination, land rights and to participate in decisions affecting them, such as the establishment and management of protected areas. States should recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands and to participate in the management and conservation of the associated natural resources.
The United Nations Declaration on the Rights of Indigenous Peoples, which consolidates the individual and collective rights of indigenous peoples already recognised in other human rights instruments and jurisprudence, affirms the right of indigenous peoples to own and control their lands and makes specific reference to conservation in Article 29, which states that indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources and that States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination. The Declaration furthermore affirms in Article 32 that indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources and that States shall consult and cooperate 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.
Under international environmental law, all 196 States parties to the Convention on Biological Diversity have agreed that the establishment, management and monitoring of protected areas should take place with the full and effective participation of, and full respect for the rights of, indigenous peoples. They have also set targets which include global expansion of protected area coverage to at least 17 per cent of terrestrial and inland water areas and 10 per cent of coastal and marine areas by 2020. This further underlines the importance that States and conservation organisations implement measures to recognise the rights of indigenous peoples as a matter of priority.
At the global level, protected-areas policy is shaped by the International Union for Conservation of Nature (IUCN). Since 2003, IUCN has committed to promote that all protected areas be managed with participation of indigenous representatives in compliance with the rights of indigenous peoples and that mechanisms be established for the restitution of indigenous peoples' traditional lands and territories that were incorporated in protected areas without their free and informed consent. The majority of the large conservation organisations have adopted specific policies on indigenous peoples' rights, and several have developed specific guidelines on how to implement free, prior and informed consent in their projects. However, these policies have been slow in transferring from paper to practice.
In view of the powerful position conservation organisations hold vis-à-vis authorities in countries with weak rule of law, I call on conservation organisations to use their leverage more affirmatively in order to influence national authorities and advocate for legal and policy shifts in countries which still fail to recognise indigenous peoples' rights, notably by supporting legislative reform, the application of free, prior and informed consent and the restitution of ancestral lands of indigenous peoples. Furthermore, conservation organisations should ensure that indigenous peoples participate equally in the management of protected areas and that all conservation measures include continuous joint monitoring of how they comply with standards protecting indigenous peoples' rights.
Deficient national legal recognition of indigenous peoples' land rights continues to be the main obstacle which continues to block the important contribution of indigenous peoples in conserving biological diversity and their participation in conservation efforts. I urge States to critically review their policy and legislative framework for the full recognition of the rights of indigenous peoples over their lands, territories and resources as enshrined in international human rights law.
Protected areas often overlap with World Heritage sites and have in numerous instances been declared without consultation with indigenous peoples, with subsequent serious negative impact upon their rights. I urge UNESCO to ensure that respect for indigenous peoples' right to free, prior and informed consent is obtained prior to World Heritage listing of protected sites.
In conclusion, rights-based conservation measures continue to be hampered by the legacy of past violations and by the lack of legal recognition by States of indigenous peoples' rights. Conservation organisations and indigenous organizations could be powerful allies in their mutually shared goals to safeguard biodiversity and protect nature from external threats such as unsustainable resource exploitation. Protected areas continue to expand, yet threats against them from extractive industry, agribusiness, energy and infrastructure projects are also increasing, and thus the urgency to address effective, collaborative and long-term conservation is of paramount importance. The escalating incidence of killings of indigenous environmentalists further underlines the urgency that conservationists and indigenous peoples join forces to protect land and biodiversity from external threats.
I had the privilege of being invited to present this report before the International Union for the Conservation of Nature (IUCN) World Conservation Congress which was held in Hawaii in September this year. I welcome the news from IUCN that important resolutions were adopted by the Congress which took into account some of the recommendations I made in my report, including on the need for safeguarding indigenous lands, territories and resources from unsustainable developments (resolution 097) by encouraging that governments work with indigenous peoples to create, institute and enforce legal and management regimes to enhance accountability and improve governance in order to avoid interventions that negatively impact on the rights of indigenous peoples. Further resolutions were adopted recognising the overlap between protected areas and territories conserved by indigenous peoples and local communities (ICCAs) and on improving the participation of indigenous organisations in the structure of IUCN.
I briefly wish to refer to the thematic report I presented to the Human Rights Council last month, which was the second of three reports that I will dedicate to international investment agreements and their impacts on indigenous peoples' rights. Last year, my report to the General Assembly (A/70/301) sought to address the impact of the international investment regime in the context of indigenous peoples' rights. My report to the Human Rights Council this year further contextualises and analyses these impacts and presents a number of recommendations aimed at guiding Member States, the United Nations system and the actors involved in the international investment law regime. My report seeks to promote coherence across international investment law and international human rights law and ensure that the responsibility of States pertaining to the rights of indigenous peoples is not obstructed by protections afforded to investors. I believe it is possible to reform and develop a system of international investment law that reduces risk to indigenous peoples' rights and serves to benefit both them and the State, while providing investment security to foreign investors. This requires the establishment of regulatory frameworks and enforcement mechanisms to ensure that investors' practices are consistent and comply with international human rights standards pertaining to indigenous peoples' rights.
I wish to take this opportunity to note that my third and final report relating to international investment agreements will be presented to the Human Rights Council next year. It will consider how human rights and sustainable development approaches can contribute to shaping the future of investments in or near indigenous peoples' territories so that they serve to benefit all in a just and equitable manner.
In my thematic report to the General Assembly next year I will, following up on discussions in the Permanent Forum this year, explore how armed conflict, peace agreements and transitional justice impact on the human rights of indigenous peoples and in particular on their right to truth, justice and reparation.
Among other thematic priority areas, I will continue to monitor closely the implementation of the Sustainable Development Goals (SDGs). Indigenous peoples make up some five per cent of the global population, yet account for fifteen per cent of the world's poorest peoples. While I note as positive the references to indigenous peoples in the SDG indicators relating to agricultural productivity, education and in the need for national progress reviews, I regret that the SDGs did not include additional references to indigenous peoples among its goals and target indicators. I wish to recall that I urged for such inclusion and for the need for disaggregated data in order to monitor development progress in my report to the General Assembly in 2014 (A/69/267).
As the coming year will mark the tenth anniversary of UNDRIP, I will continue to pay particular attention to the application of its wide-ranging provisions as a matter of priority. Closing the gap between the recognition of indigenous peoples' rights at the international level and the actual implementation on the ground remains my main pre-occupation and I reiterate my commitment in my role as Special Rapporteur to monitor closely how States and the United Nations are implementing the Declaration and the Outcome Document of the World Conference.
Since I last spoke here in the General Assembly, I have conducted three official country visits to Sápmi (Finland, Norway and Sweden) in August 2015, Honduras in November 2015 and Brazil in March 2016. I reported on these visits to the Human Rights Council last month and will therefore only make brief mention of these. During my visit to the Sápmi, I observed that the increased drive to mineral extraction and the development of renewable energy projects in Sápmi was one of the main threats against the realization of the rights of the Sami people.
In Honduras, I witnessed that the lack of full recognition, protection and enjoyment of indigenous peoples' rights to ancestral lands and natural resources is a fundamental problem as is impunity for the increasing violence against indigenous peoples. During my visit, I met with Berta Cáceres, an indigenous Lenca activist who was killed four months later (on 3 March 2016) because of her protests against the Agua Zarca dam project, even though she had been awarded precautionary protection measures from the Inter-American Commission on Human Rights. I will continue to monitor the investigations into Ms. Caceres' murder and urge the State to hold the perpetrators accountable and break the vicious cycle of impunity.
In Brazil, I noted the convergence of various disconcerting developments that further entrench the interests and power of the economic and political elite to the detriment of the rights of indigenous peoples. I deeply regret that, since my visit, killings and violent evictions of the Kaiowa Guarani peoples in Mato Grosso, some of which I visited, continue to take place. I also regret that many of the promises to the indigenous peoples displaced by the Bello Monte Dam are still to be implemented. I am pleased, however, to learn that the Tapajos Dam Project has been cancelled which has been the long-standing demand of the Munduruku and other indigenous peoples living in that territory. The demarcation of the indigenous peoples' lands in Cachoeira Seca, is another good development.
Next year I will be conducting country visits to Australia, Guatemala and possibly, ChiIe and Cameroon. I wish to thank countries in Latin America and in Africa, that have invited me to do a country visit.
Before I end my report I would like to mention the promotion of good practices, as I have continued to provide technical assistance to Governments in their efforts to develop laws and policies that relate to indigenous peoples. Allow me to highlight a few examples of such engagement.
During the Paris Conference of Parties (COP21) to the UN Framework on Climate Change (UNFCCC) in December 2015, I, together with OHCHR and the Special Rapporteur on human rights and the environment and the indigenous peoadvocated for the inclusion of human rights. Language which recognises the need to address human rights, including indigenous peoples' rights, in all climate change measures was included in the Paris Agreement.
In February 2016, I participated in the High-level Dialogue on the World Bank draft environmental and social standard on indigenous peoples in Addis Ababa, which centred on the use of the term indigenous peoples and the requirement to obtain their free, prior and informed consent. I, together with the Chairs of the Permanent Forum and the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), subsequently wrote a joint letter to the World Bank to express concerns regarding the weakening of the safeguards, with proposals for remedial language. I will continue to engage with the World Bank on safeguards for indigenous peoples.
I was recently asked by the United Nations Country Team in Honduras to provide comments on the draft consultation law currently considered by the Government. I look forward to contributing to this initiative which can be an important first step to implement my recommendation that United Nations bodies in Honduras, including the newly created Office of the United Nations High Commissioner for Human Rights, in cooperation with the Government of Honduras and indigenous peoples, provide technical assistance to the State to carry out recommendations contained in the country report.
I have prioritised and significantly increased the number of communications addressed to Governments in relation to allegations of violations of indigenous peoples' rights. Since the beginning of this year, I have sent over fifty communications to more than thirty States in relation to violations of a wide range of economic, social and cultural as well as civil and political rights. The failure to ensure the free, prior and informed consent of indigenous peoples before undertaking measures and projects affecting their lands, territories and other resources remains a key recurring concern. I would like to thank all the States that have responded to my communications.
To conclude my presentation, I wish to re-affirm my commitment to promoting indigenous peoples' rights in close collaboration with indigenous peoples themselves and in coordination with relevant international mechanisms and institutions, notably the Permanent Forum, EMRIP and treaty bodies. I seek to contribute to ensuring that indigenous peoples' voices are effectively heard, and to facilitate dialogue between indigenous peoples, Governments, and other relevant actors involved in specific situations across the world in which indigenous peoples' rights are not being respected. I reiterate my pledge to address the human rights challenges brought to my attention and to be proactive in efforts to prevent such situations from arising or escalating.
I thank you all for your attention and look forward to our discussion.
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