Indigenous World 2019: UN Special Rapporteur on the Rights of Indigenous Peoples
The Special Rapporteur on the Rights of Indigenous Peoples is one of the 56 “special procedures” of the United Nations Human Rights Council. The special procedures are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective.
The Special Rapporteur has a mandate to promote the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and relevant international human rights instruments; examine ways and means of overcoming existing obstacles to the full and effective protection of the rights of indigenous peoples; to promote best practices; to gather and exchange information from all relevant sources on violations of the human rights of indigenous peoples; and to formulate recommendations and proposals on measures and activities to prevent and remedy violations of those rights. She is also mandated to work in coordination with other special procedures and subsidiary organs of the Human Rights Council (HRC), the human rights treaty bodies, relevant UN bodies and regional human rights organisations.
In accordance with this mandate, the Special Rapporteur can receive and investigate complaints from indigenous individuals, groups or communities, conduct thematic studies, undertake country visits and make recommendations to governments and other actors.
The first Special Rapporteur on the rights of indigenous peoples, Prof. Rodolfo Stavenhagen, was appointed by the then Commission on Human Rights in 2001, serving two three-year periods which ended in 2008. The second Special Rapporteur, Prof. James Anaya, was appointed by the HRC in 2008 and held the mandate until 2014. Ms. Victoria Tauli-Corpuz from the Philippines was appointed as the third Special Rapporteur by the HRC and assumed her position in June 2014. She is the first woman and the first person from the Asian region to assume the position.
In 2018, the Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, continued to carry out work within her four principal work areas. These are the promotion of good practices; responding to specific cases of alleged human rights violations; conducting country assessments; and undertaking two thematic studies.
Thematic report on attacks against and criminalization of indigenous rights defenders
The first thematic report presented to the HRC in 2018 addresses the situation of attacks against and the criminalisation of indigenous human rights defenders and the availability of prevention and protection measures. The report documents a worrying escalation in the criminalisation and harassment of indigenous peoples, in particular when they are defending and exercising their rights to their lands, territories and natural resources. Human rights violations often arise when indigenous leaders and community members voice concerns over large-scale projects related to extractive industries, agribusiness, infrastructure, hydroelectric dams and logging which are undertaken on their lands, territories and resources without consultations or their free, prior and informed consent (FPIC).The report assesses the root causes and drivers of the current situation, which has been termed a “global crisis”, maps global trends and provides country examples of cases of violence, attacks, criminalisation and harassment of indigenous peoples who defend their rights.
In the report’s conclusions and recommendations, the Special Rapporteur calls for a zero-tolerance approach to violence and killings of indigenous human rights defenders as well as prompt and impartial investigations of attacks. Combatting criminalisation requires a comprehensive review of national laws and the revocation of legislation and criminal procedures that violate the principle of legality and contradict international obligations. Provisions that criminalise the freedom of expression and assembly and indigenous livelihoods such as rotational agriculture, hunting and gathering, should be repealed. Private companies have a responsibility to exert human rights due diligence in all operations, perform ongoing human rights impact assessments for all projects with the full participation of affected indigenous communities, and cease acts of defamation which stigmatise indigenous peoples. The international community, international financial institutions (IFIs) and donors must require safeguards that are consistent with human rights obligations and monitor compliance thereof. Protection measures for indigenous peoples need to be culturally appropriate, consider gender aspects and be developed jointly with the communities concerned. Support for community-led protection measures should be prioritised.
The findings in the report are based on consultations with indigenous peoples’ representatives and more than 70 written submissions from indigenous and human rights organisations and other stakeholders. The Special Rapporteur continues to monitor the situation through her reports, communications as well as engagement in a global campaign to ensure constant focus to the risks that indigenous peoples face.
In the middle of the preparation of the report, the topic of “criminalisation of indigenous peoples” became personal for the Special Rapporteur. In retaliation for having raised concerns over the escalating violence in the Philippines, in February 2018, she was mentioned together with some 30 other known advocates for indigenous peoples’ rights and around 600 people in total, in a petition filed by the Department of Justice, de facto alleging them of being terrorists and members of the New People’s Army and the Communist Party of the Philippines. There was a global outcry against the petition and the Special Rapporteur received support from indigenous peoples, United Nations agencies and governments across the world. On 27 July 2018, the Regional Trial Court of Manila declared the Special Rapporteur as a non-party to the petition.
Thematic report on indigenous peoples and self-governance
In October 2018, the Special Rapporteur presented her second report of 2018 to the 73rd session of the Third Committee of the UNGA. The report provides an introductory comment on the theme “indigenous peoples and self-governance”, a subject that the Special Rapporteur is looking further into in her thematic studies in 2019. Indigenous governance systems have proven resilient for centuries despite colonisation, attacks and attempts to undermine them in the name of nation building. Still today, these systems, which often include customary laws, dispute resolution and adjudicative mechanisms, are essential in ensuring the well-being and rights of indigenous peoples, in particular to self-determination and self-identified development. The report provides an initial overview of the international legal framework on the right to autonomy and self-government of indigenous peoples and then reviews some concrete examples of the broad diversity of indigenous governance systems that exist across the world.
In light of the 2030 Agenda for Sustainable Development, the report discusses the contribution of indigenous peoples’ self-governance systems to development outcomes, including to conflict reduction, climate adaptation and mitigation measures, conservation, culturally appropriate social services and health care, economic progress and other development outcomes. Mounting evidence indicates that development programmes that maximize indigenous peoples’ ability to participate in decision-making and implementation perform better than those controlled by external actors. The report highlights that self-determined development can only be achieved by guaranteeing the effective involvement of indigenous peoples in the implementation of the 2030 Sustainable Development Goals.
The Special Rapporteur carried out two country visits in 2018 to Guatemala and to Ecuador. She submitted her report on the Guatemala visit to the 39th session of the HRC in September 2018, while the report from her visit to Ecuador will be presented to the 42nd session of the HRC in September 2019.
The Special Rapporteur conducted her visit to Guatemala from 1 to 10 May 2018. During the visit, she witnessed how indigenous peoples continue to face structural racism and lack of access to justice, political participation, education, health care and formal employment. This despite the fact that indigenous peoples constitute the majority of the population. The levels of inequality are increasing and around 40 per cent of indigenous peoples still live in extreme poverty. More than half of all indigenous children in Guatemala are malnourished.
The report looked into the root causes of this situation, which include impunity, corruption, institutional weakness and the legacy of violence from the internal armed conflict from 1960 to 1996. The failure to implement the Peace Agreements since the conflict has undermined progress in many areas, including land reform, recognition of indigenous authorities and access to justice, political participation and bilingual intercultural education. The Special Rapporteur noted as a particular concern the lack of protection and legislation on the rights of indigenous peoples to lands, territories and natural resources. She expressed deep concern over the resurgence of violence, attacks, forced evictions and the criminalisation of indigenous peoples who defend their rights.
From 19 to 29 November 2018, the Special Rapporteur conducted a visit to Ecuador. In her end-of-mission statement, she concluded that Ecuador’s Constitution of 2008 provides a basis to build a plurinational and intercultural state, but that more needs to be done to ensure that indigenous peoples’ rights come before resource extraction and short-term economic gains. While she welcomed the dialogue that the new government has initiated with indigenous peoples and initial results, in particular related to intercultural, bilingual education, the Special Rapporteur called for priority to be given to the structural problems affecting the rights of indigenous peoples in the country. These include first and foremost the protection of their rights to lands, territories and resources, adequate consultation and FPIC, especially in light of extractive, agribusiness and investment projects, and harmonisation of the indigenous and ordinary justice systems. The Special Rapporteur also assessed the specific situation of indigenous peoples with small populations; indigenous peoples near the northern border, in voluntary isolation, in regard to their initial contact and indigenous women.
During the remaining time of her mandate, the Special Rapporteur will make special efforts to seek invitations to conduct country visits in the regions of Africa and Asia.
The Special Rapporteur continued examining cases of alleged violations of the human rights of indigenous peoples and addressed the concerned countries and other private actors through the communications procedure, either independently or jointly with other special procedures. Cases addressed are included in the special procedures’ joint communications report, which is submitted to each HRC session. In 2018, the mandate issued 55 communications to more than 20 different countries as well as to other entities, such as private corporations and inter-governmental organisations.
During 2018, the Special Rapporteur also issued press releases on a range of different topics, including indigenous migrant children in detention in the United States of America, the landmark environmental Escazu treaty from Latin America and Caribbean, a court ruling recognising the Ixil Mayans as victims of genocide in Guatemala, the conviction of seven persons involved in the murder of Berta Cáceres in Honduras, the Local Communities and Indigenous Peoples’ Platform in the implementation of the Paris Agreement on climate change and several specific cases of killings, violence and criminalisation of indigenous individuals and communities defending their rights.
Some of the communications and press releases had immediate impact. In January 2018 for instance, the Special Rapporteur together with other special procedures issued a press release to draw attention to violations against the Sengwer in relation to a major climate change project in the Embobut forest in Kenya. Within 48 hours, the European Commission, which was funding the project, decided to suspend the entire climate change project pending a human rights assessment. The Special Rapporteur continues to monitor the situation of the Sengwer.
Collaboration with other specialized UN bodies and regional human rights bodies
In line with her mandate, the Special Rapporteur collaborated with the UN Permanent Forum on Indigenous Peoples (UNPFII) and the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) and participated in the annual sessions and coordination meetings of both bodies. During their sessions, the Special Rapporteur also held bilateral meetings with more than 35 delegations of indigenous peoples and with interested Governments to discuss issues within the scope of her mandate.
She further participated in several UN expert group meetings, including the expert group meeting of the UN Department of Economic and Social Affairs on the topic of “Sustainable Development in the territories of indigenous peoples” in January 2018 and the expert group meeting of the Special Rapporteur in the field of cultural rights on “Strengthening the Cultural Rights Approach to the Universality of Human Rights” in February 2018.
The Special Rapporteur considers it important to strengthen the coordination with regional human rights bodies, as well as the UN human rights treaty bodies and other mandate holders of the special procedures. In terms of cooperation with other special procedures, the Special Rapporteur issued joint communication and press releases and attended the annual meeting of special procedures. She continued prioritising collaboration with the Inter-American Commission on Human Rights (IACHR), which included presenting a report to the HRC on the situation of indigenous peoples in isolation and recent contact, following a joint meeting with the IACHR and the Regional OHCHR Office for South America in 2017.
The Special Rapporteur has also pursued her engagement with UN agencies and funds to promote the respect for the rights of indigenous peoples in their areas of work. In particular, she focused on drawing attention to the rights of indigenous peoples in the framework of the 2030 Agenda for Sustainable Development. With this in mind, she attended the 2018 High Level Political Forum (HLPF) in New York, where she participated in the national voluntary reviews and spoke on the panel on “Leaving no one behind” to emphasise the importance of respecting indigenous peoples’ rights and ensuring their participation in the context of sustainable development. During the HLPF, the Special Rapporteur also spoke at several events organised by UN agencies, amongst them by the UN Environment Programme (UNEP) and the UN Development Programme (UNDP).
In 2018, the Special Rapporteur undertook several academic country visits. In October 2018, she visited Cambodia to speak at a conference on “Indigenous Peoples and the Business Sector” at the Royal University of Law and Economics (RULE). She furthermore engaged with various ministries to discuss the collective land titling process in Cambodia. Later in the year, the Special Rapporteur made a working visit to Mexico, where she presented the findings from her 2017 country visit report. She also conducted an academic visit to Colombia to deliver a lecture at the National University of Colombia.
The Special Rapporteur is mandated to pay particular attention to the rights of indigenous women in her work. Apart from specific observations and recommendations in her country reports, she participated at the 3rd International Indigenous Women’s Symposium on Environment and Reproductive Health at the University of Columbia and delivered a keynote speech at the 4th Conference of the Asian Indigenous Women’s Network in Bangkok.
The Special Rapporteur continued to be an advocate for indigenous peoples’ rights in the context of climate change and conservation projects. This involved her engagement in ongoing awareness raising as well as her attendance amongst others at the 24th Conference of the Parties to the United Nations Convention on Climate Change in Poland and the California Climate Summit.
In September 2018 she spoke at the conference organised by IWGIA titled: “Defending the defenders: new alliances for protecting indigenous peoples’ rights”. In December 2018, she participated at the Annual Forum of the International Commission of Jurists, held in Bangkok on the topic of indigenous and other traditional or customary justice systems in Asia.
In 2019, the Special Rapporteur will continue to prioritise advocacy for the protection of indigenous human rights defenders. In her thematic work, she will focus on indigenous peoples and self-government, as well as indigenous peoples’ access to justice and the harmonisation of indigenous and ordinary justice systems.
This article is part of the 34th edition of the 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 2020 in full here