The Indigenous World 2011: Editorial

Written on 29 April 2011. Posted in The Indigenous World Editorial

In 2009, the UN Human Rights Council asked the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) to carry out a study on indigenous peoples and the right to participate in decision-making, to be completed by 2011. The EMRIP submitted a progress report to the Human Rights Council in September 2010. This report shows that indigenous peoples’ participation in decision-making and the right to free, prior and informed consent are at the core of indigenous peoples’ rights and this is strongly reflected in the articles of The Indigenous World 2011.

As the report states:

Indeed, indigenous participation in decision-making on the full spectrum of matters that affect their lives forms the fundamental basis for the enjoyment of the full range of human rights. This principle is a corollary of a myriad of universally accepted human rights, and at its core enables indigenous peoples to be freely in control of their own destinies in conditions of equality. Without this foundational right, indigenous peoples’ human rights, both collective and individual, cannot be enjoyed.¹

Let us start with some of the positive developments of 2010.

The year ended with the first specific law on indigenous rights being adopted in Africa, when the parliament of the Republic of Congo passed a law on the promotion and protection of the rights of indigenous peoples in December. The Central African Republic, for its part, became the first African state to ratify ILO Convention 169 in August 2010. These are two very positive developments that will hopefully significantly advance the rights of indigenous peoples and improve their current situation of severe poverty, marginalisation and discrimination in these countries. It is also to be hoped that the developments will inspire other countries on the continent to do the same. With the adoption of a new constitution, Kenya is on its way to a future that provides for the greater participation of marginal groups at all levels of government and that recognises indigenous languages and cultures as well as indigenous communities’ desire to preserve their identities and cultures. “The policy and legal gains enshrined in the new constitution is a testimony to indigenous peoples’ determined and unrelenting efforts and their growing influence to champion their own course,” states the article in this volume.

In Thailand, the government has taken a significant step towards addressing indigenous issues by passing a cabinet resolution to restore the Karen’s traditional livelihood. A work plan will consider, among many other things, the continued practice of the rotational farming system, which was formerly considered as mere “slash-and-burn” cultivation that would cause damage to the forests. In Cambodia, an indigenous community was granted a collective title for the first time.

In Bolivia, a number of Guaraní families were finally released from virtual slavery on large estates in the Chaco region after a year-long struggle. Furthermore, Bolivia approved the Law on Mother Earth which, albeit with considerable limitations, includes some provisions for indigenous consultation and some protective measures for communitarian economies. In Colombia, an unexpected positive change has been noted with regard to the public recognition of indigenous peoples on the part of newly-elected President Juan Manuel Santos. It remains to be seen, however, whether this goodwill materializes into an end to impunity for human rights violations and the unconsulted encroachment of the extractive industries onto indigenous territory, which continued with indefatigable speed throughout 2010. Latin American countries have established a legal system that, to a certain extent, recognises indigenous peoples’ rights and protects their territories. Many countries in Latin America have, for example, ratified ILO Convention 169 (the International Labour Organization Convention concerning Indigenous and Tribal Peoples in Independent Countries), the latest being Nicaragua, which ratified the Convention in 2010. There is, however, a huge gap between existing rights and their implementation, as can be seen from nearly all of the Latin American country reports this year. Furthermore, access to justice is limited to those who know their rights and can afford legal support. There is thus an increasing need for indigenous rights observatories to monitor the implementation of indigenous rights, provide legal support to indigenous peoples and instigate due legal measures. This increasingly includes taking cases to the Inter-American Human Rights system when domestic legal systems have been exhausted.

On 4 February 2010, the African Commission ruled on the Endorois case, condemning the Kenyan government’s expulsion of the Endorois people from their ancestral lands in the 1970s and ordering the government to restore the Endorois’ rights to their ancestral lands and to compensate them. This is a landmark ruling as it is the first to determine who indigenous peoples in Africa are, and what their rights to land are. The Endorois decision is a victory for all indigenous peoples across Africa. The case is an historic milestone in the struggle for recognition of indigenous peoples’ rights to land and sets an unprecedented reference.

When the UN Declaration on the Rights of Indigenous Peoples (the Declaration) was adopted in the UN General Assembly in September 2007, only four states voted against it, while 11 states abstained. Australia revised its position in 2009, officially endorsing the Declaration. In 2010, New Zealand, Canada and the US followed suit. Furthermore, two countries that had previously abstained from the vote also expressed their commitment to the Declaration. These are important developments and the value of the consensus around the Declaration cannot be underestimated. The Declaration is truly a universal instrument protecting the rights of indigenous peoples. The articles in this volume, however, also express concerns regarding the conditionality of New Zealand, Canada and the US’s endorsement of the Declaration. All three countries have set the Declaration within the limits of their existing legal and constitutional framework, despite strong encouragement from indigenous peoples and civil society to make an unqualified endorsement. It also needs to be noted that a number of countries that abstained from the vote in 2007 have not begun a process of reconsideration, despite the serious human rights situation of the indigenous peoples in these countries. These include, for example, the Russian Federation, Bangladesh, and Burundi, to name but a few.

One of the key elements of the Declaration is the acknowledgment of indigenous peoples’ right to free, prior and informed consent as a key principle and instrument with which to assert their right to self-determination. FPIC has been seen by many states as a contentious issue, as it could obstruct their countries’ development. However, the current reality is that development is obstructing the lives of indigenous peoples. Development aggression in the form of logging, plantations, mega-dams and other land development projects continues to be the major challenge facing indigenous peoples. Many development projects still go ahead without states having fulfilled their duty to obtain FPIC from the indigenous peoples affected. This is, for example, the case in Malaysia, Peru and Brazil, where large dams flood indigenous lands without the indigenous peoples having been consulted or their free, prior and informed consent obtained. In Nepal, 2010 started with a nation-wide strike on the part of the indigenous peoples demanding the establishment of a mechanism in the Constituent Assembly to implement the principle of FPIC.

This failure to implement prior consultation has also been at the root of social protest in Ecuador, Bolivia and Guatemala. In Peru, a long-awaited law on indigenous and native peoples’ right to prior consultation was approved by Congress but later rejected by the President. Much hope had been invested in this law, which was expected to prevent further violent social conflict, such as that which took place in Bagua in 2009.

Development without culture and identity

During its 9^th session, the UN Permanent Forum on Indigenous Issues (UNPFII) discussed the issues of “Indigenous Peoples: Development with Culture and Identity”. The fact that it is fundamental for indigenous peoples to preserve and develop their cultures and ways of life is strongly reflected in its recommendations. Development for indigenous peoples encompasses all spheres of life and wellbeing and it is therefore crucial that indigenous peoples effectively participate in development processes, benefiting them as peoples and not only the state as a whole.

In the second part of his Annual Report to the UN Human Rights Council, the Special Rapporteur on Indigenous Peoples analysed the issue of corporate responsibility with respect to indigenous rights. He defined the roles of the states and the roles of companies and clearly stated that companies had to exercise due diligence as part of their responsibility to respect indigenous rights. This year’s The Indigenous World, however, clearly shows that encroachment onto indigenous peoples’ lands and territories by companies is still one of the greatest threats to indigenous peoples the world over. Many of the articles tell of the displacement of indigenous peoples due to the construction of hydroelectric dams or due to mining operations and other activities (for example in Peru, Cambodia, Brazil, Laos, Malaysia, Uganda, Botswana etc.), of human rights violations related to large-scale developments and of the serious environmental impact of industrial projects on indigenous lands. In Vietnam, several large bauxite-mining projects in the Central Highlands will lead to the serious environmental degradation of thousands of hectares of forests and agricultural lands and will lead to the massive displacement of indigenous peoples and ethnic minorities. Massive land-grabbing for large-scale developments in Cambodia, including plantations and tourist sites, mining and hydroelectric dams and roads, continues to have a devastating impact on the indigenous peoples. Decisions on such projects are made with no meaningful prior consultation, and no FPIC process. In 2010, the UN Committee on the Elimination of Racial Discrimination expressed concern at “reports of the rapid granting of concessions on land traditionally occupied by indigenous peoples without full consideration, or exhaustion of procedures provided for, under the land law and relevant sub-decrees...” During the year, indigenous peoples in Cambodia increased their advocacy actions on land and resource rights but these were consequently met with intimidation.

In Peru, at the end of the year, the government presented a bill to Congress aimed at legalising the option to move communities when there is a “public or overriding interest” for development projects to proceed, and another aimed at abolishing the requirement for Environmental Impact Assessments. A similar attempt was made in Panama with the approval of Law 30, which would mean that larger development projects would no longer require significant Environmental Impact Assessments.

In Tanzania, human rights abuses against indigenous pastoralist communities continued and, in Loliondo, 200 Maasai pastoralist houses were burnt down in order to make way for a hunting company from the United Arab Emirates. In the Russian Federation, communities were increasingly affected by their limited access to fishing and hunting resources, due to new licences being distributed through tenders, mainly to bigger companies.

The increasing globalisation of the demand for, and grabbing of, lands becomes evident in the article on Ethiopia, where the government has developed a strategy to boost agricultural production through large-scale land leases to foreign investors (such as Saudi Arabian, Indian and Chinese firms) who, in return, are going to build schools, clinics and install electricity for the communities. The tragedy is that all this is going to lead to the destruction of the livelihood systems of millions of pastoral communities in western and south-western Ethiopia, who will lose their land for the sake of this alleged “transformation”. The policy does not provide for any compensation, and pastoral communities will be uprooted from their ancestral land without any alternative.

In some countries, such as Tanzania and Malaysia, initiatives taken by governments with regard to land-use planning and community titling – objectively benefiting indigenous communities – are regarded with suspicion. In Sabah, Malaysia for example, communal titling is promoted by the government on the condition that the villagers agree to have their land developed by companies.

Even though, many Latin American states are becoming richer, the situation of indigenous peoples in the countries has changed little. On the contrary, while the states profit from the development of the countries’ natural resources and are increasing their GDP, indigenous peoples, on whose lands most of these resources can be found, are increasingly suffering from the severe encroachments onto their land by multinational companies. This is described in every article on Latin America in this volume, which also reports on increasing inequality with regard to rights over and access to such fundamental resources as water (see, for example, the articles on Ecuador and Chile).

Such experiences should be taken into consideration by developed states when discussing bilateral cooperation, development aid and future trade relations. Increased GDP does not necessarily mean an improved human rights situation, nor an automatic improvement in the living conditions of marginalised groups, such as indigenous peoples, as can be seen in several of this year’s articles.

The Organisation for Economic Cooperation and Development (OECD) launched the update of its Guidelines for Multinational Enterprises in May 2010. These guidelines are intended to promote responsible business practices on the part of companies from (or operating in) OECD member and other states that accept the Guidelines. Observance of the Guidelines by enterprises is, however, voluntary and not legally enforceable. It is the responsibility of adhering governments to promote them and enhance their influence among companies. The OECD publishes annual reports which describe what adhering governments have done to live up to this commitment.²  Whereas the current guidelines from 2000 do not include any mention of indigenous peoples or indigenous rights, the OECD has made an attempt, in relation to its enhanced focus on human rights, to include some reference to indigenous issues in the new guidelines. The ToR for the new guidelines refer to the human rights aspects of relationships with local and indigenous communities. In January 2011, the OECD invited the UN Special Rapporteur on the Rights of Indigenous Peoples, Professor James Anaya, to an informal expert meeting on human rights issues, where he stressed that “any discussion of the responsibilities of multinational enterprises in relation to human rights issues must include indigenous peoples’ rights, as articulated by the UN Declaration on the Rights of Indigenous Peoples, and as consistently protected through regional-level human rights mechanisms”.³

Environment, climate and REDD

In December 2010, states and civil society met in Cancún, Mexico at COP16, to discuss climate change under the UN Framework Convention on Climate Change (UNFCCC). During an international indigenous peoples’ technical workshop with states, which took place in September 2010 in Xcaret (Mexico) and was hosted by the Government of Mexico, indigenous peoples agreed their key demands and messages. Three central issues were identified: the adoption of a rights-based approach by incorporating the UN Declaration; the recognition of the right to Free, Prior and Informed Consent (FPIC); and the recognition and protection of indigenous knowledge and cultural heritage, innovations, technologies, traditional cultural expressions and indigenous peoples’ spiritual beliefs. As a result of consistent indigenous advocacy work and the commitment of the Mexican government to the agreements reached at the Xcaret meeting, the Cancún Agreement arising from COP16 explicitly notes the UN Declaration. The shared vision text makes a general reference to the UN Human Rights Council’s resolution on climate change and human rights, which, as the author of the UNFCCC article in this volume stresses, marks a shift in the place of indigenous peoples from vulnerable groups to rights’ holders.

FPIC is one of the key principles and issues for indigenous peoples in the discussions on REDD (Reduced Emissions from Deforestations and Forest Degradation). The document from the UNFCCC COP 16 requests that development countries ensure the full and effective participation of indigenous peoples when implementing their national strategies and action plans. Indigenous peoples have been increasingly active in the REDD processes at national level and the opportunities and challenges accompanying REDD are described in many of the articles in this volume (see, for example, Indonesia, Vietnam, DRC, Gabon, etc.). Experiences are diverse and the views on the process are, accordingly, shifting. In some countries, particularly in Africa, indigenous peoples see REDD as a way of asserting their rights through law and policy reforms and, due to the REDD requirements, of applying the principle of FPIC. REDD can also be an opportunity for indigenous organisations to enter into dialogue with governments and to promote indigenous rights, as is stressed in the article on DRC, for example. In Gabon, REDD has become the key instrument for forest peoples, both in terms of creating dialogue between government and key stakeholders and in terms of promoting indigenous peoples’ rights and consent in policy making and future legislation on the implementation of REDD. Indigenous peoples in Kenya decided to take advantage of the opportunities that the REDD mechanisms present and have experienced positive trends in the preparation of the national Readiness Preparation Proposal (RPP), when a government agency for the first time willingly used the term “indigenous peoples”.

In Asia, experiences are less positive and indigenous organisations have become cautious as to their involvement in REDD mechanisms and the effect REDD may have on their communities. State forest management has caused problems for indigenous communities in Malaysia in the past and today they are worried about the transparency of REDD projects. They are therefore calling for the implementation of safeguards for indigenous peoples’ rights. They are united in their opposition to the implementation of REDD without adequate consultation and without obtaining the free, prior and informed consent of the indigenous communities affected. In the Philippines, opinions on REDD engagements are divided but there are serious concerns that engagement may again mean the disenfranchisement of indigenous peoples from their lands. As the process has already commenced, however, it is crucial that indigenous peoples are prepared for REDD and that they have been increasingly involved in the processes and have succeeded in putting their concerns on the table. Again, in this case, as in many others, indigenous peoples’ involvement in decision-making and in the implementation of FPIC is crucial and could, ultimately, lead to the real self-determination of indigenous peoples.

The World Conference on Indigenous Peoples

Concerns with regard to the extreme social and economic disadvantages of indigenous peoples were also shared by the UN General Assembly when, in November 2010, it unanimously adopted a resolution to hold a World Conference on Indigenous Peoples.

The Conference, which will take place in 2014, at the end of the Second International Decade of the World’s Indigenous People (2005 – 2014), aims to discuss criteria for fulfilling the objectives of the United Nations Declaration on the Rights of Indigenous Peoples.

The resolution calls on Member States and the international community to help find solutions to the problems faced by indigenous peoples in areas such as culture, education, health, human rights, the environment and socio-economic development. Furthermore, the General Assembly again encouraged Member States who had not yet done so to ratify ILO Convention No 169 and to consider supporting the Declaration.⁴

Kathrin Wessendorf
Editor

Lola García-Alix
Director

April 2011

Notes

¹Progress report on the study on indigenous peoples and the right to participate in decision-making. Report of the Expert Mechanism on the Rights of Indigenous Peoples. A/HRC/EMRIP/2010/2.

² http://www.oecd.org/document/28/0,3746,en_2649_34889_2397532_1_1_1_1,00.html

³Update of OECD Guidelines for Multinational Enterprises: Informal expert meeting on human rights issues, 25 January 2011. Summary of remarks of invited experts, https://business-humanrights.org/sites/default/files/media/documents/oecd-guidelines-meeting-on-human-rights-issues-summary-of-remarks-25-jan-2011.pdf

⁴UNGA Resolution: http://www.un.org/esa/socdev/unpfii/documents/UNGA_65_RES_IPs_en.pdf

This article is part of the 25^th 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 2011 in full here

Tags: Global governance, IWGIA Report