PRESENTER APPLICATION:

1. Presenter’s Name and Contact Information: Dr Makere Stewart-Harawira, University of Alberta. Member, IUCN Commission for Economic, Environmental and Social Policy. Contact details:

2. Time for Presentation: is set for 15 minutes. Do you need more than 15 minutes? If so, how

much time are you requesting for your presentation? NO..

3. Style of Presentation: Will you be presenting on your own, or with others as a group presentation? ALONE

4. Supporting Documents: Will you be referring to or providing any documents? If yes, provide a copy now with your application to speak. Please also bring 1 electronic and 4 hard copies to the hearing. UN docs; reports. Urls will be provided.

5. Outline of Presentation: Please provide a brief outline of your presentation.

My presentation will address four key areas that I believe to be relevant to the decision-making of the Panel. They are as follows:

1. International legal norms with regard to the human rights of indigenous people 2. The right to sustainable development

3. The Right to the Maintenance and Preservation of Cultural Traditions and Practices 4. The critical relationship between the biodiversity and indigenous peoples traditional knowledge

References Special Rapporteur on the Rights of Indigenous Peoples, S. James Anaya. Report to the UN Human Rights Council. Study on Extractive industries and indigenous peoples. Extractive Industries and Indigenous Peoples. A/HRC/24/41, 2013

http://unsr.jamesanaya.org/docs/annual/2013-hrc-annual-report-en.pdf (attached)

Special Rapporteur on the Rights of Indigenous Peoples, S. James Anaya. Report to the UN Human Rights Council on the situation of human rights and fundamental freedoms of indigenous peoples. A/HRC/9/9, 2008 http://unsr.jamesanaya.org/annual-reports/report-to-the-human-rights-council-a-hrc-9-9-11-aug-2008 (.pdf attached)

Stewart-Harawira, M. 2010. Prosperity Gold-Copper Mine Project Federal Review Panel Public Hearing, Canadian Environmental Assessment Registry # 09-05-44811CEAR Reference number 09-05-44811 (revised)]. Online @

http://www.ceaa-acee.gc.ca/050/documents/42800/42800E.PDF, pp. 4837 – 4851.

UN Declaration on the Right to development of Indigenous People, UN General Assembly by resolution 41/128 December 4, 1986

http://www.un.org/ga/search/view_doc.asp?symbol=a/res/41/128

UN General Assembly resolution 2200A (XXI) of 16 December 1966 (International Covenant on Economic, Social and Cultural Rights)

http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/2200%28XXI%29

UN Declaration on the Rights of Indigenous People, General Assembly Res. 61/295, 13 September 2007 http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (attached)

UNESCO RIO Declaration on Environment and Development

http://www.unep.org/Documents.Multilingual/Default.asp?documentid=78&articleid=1163

Beijing Declaration adopted by the WHO Congress on Traditional Medicine, Beijing, China, 8 November 2008

http://www.who.int/medicines/areas/traditional/TRM_BeijingDeclarationEN.pdf (attached)

6. Confidentiality: Are you requesting any information be kept confidential? NO. If so, please answer these questions:

a) What information or documents do you wish to keep confidential?

b) From whom do you wish to keep the information or documents confidential?

c) What is the nature of the information or documents (e.g. related to TSL, sacred site)

d) Are you requesting the Panel to allow you to present evidence at the hearing in such a way as to keep the evidence confidential?

e) Why are you requesting confidentiality and will you suffer prejudice if the information you are requesting confidentiality over is not held as confidential?

Appendix 1. Makere Stewart-Harawira, relevant experience and qualifications I am an Associate Professor in Indigenous, Environmental and Global Studies at the University of Alberta where I am also a researcher with the University of Alberta Water Initiative and a member of the Interdisciplinary Advisory Council of the Water Initiative. I am a Commissioner with the International Union for the Conservation of Nature Commission on Environmental, Ecological and Social Policy in the theme areas of Governance, Equity and Rights, Indigenous Peoples, Local Communities, Equity and Protected Areas, and Social and Environmental Accountability of the Private Sector. Additionally I am a member of the Joint IUCN & World Commission on Environmental Law Specialist Group on Indigenous Peoples, Customary & Environmental Laws and Human Rights (SPICEH); Joint IUCN & Species Survival Commission Specialist Group on Sustainable Use and Livelihoods (SULi) and of the IUCN Specialist Group on Indigenous Peoples, Customary & Environmental Laws and Human Rights and a member of the International Society for Ethnobiologists.

In these professional capacities I work with indigenous communities at the intersection of environmental policy, the preservation of biodiversity, indigenous traditional knowledge, and international human rights law. On the ground, I work with and on behalf of Indigenous communities in British Columbia & Alberta, Canada, and in Aotearoa New Zealand to assist in the maintenance and protection of traditional indigenous knowledge and cultural and intellectual rights, the negotiation and mediation of resource extraction, rights to development, the protection of eco-systems and rights to water. In all my endeavours, and most especially as a Waitaha woman and grandmother from Aotearoa New Zealand, I am deeply grateful for the wise counsel and teaching that I receive from the elders who have taught me at home in Aotearoa and the wise chiefs, elders and medicine people of Alberta and British Columbia whom it is my honour and privilege to serve. Relevant research projects in which I have been the lead investigator include 2012. Indigenous Communities as Stewards of Mother Earth: Responding to the Triple Crisis of

Sustainability. Kule Institute for Advanced Study research project.

2009. Lead Investigator. Energy Development and the Prosperity and Wellbeing of Aboriginal Communities in Northern Alberta. With Co-investigators, Professor Mark Nuttall, Tory Research Chair, Pol. Sc., Assistant Professor Clifford Cardinal, Health Science. SSHRC Northern Communities: Towards Social and Economic Prosperity Research Project.

2008. Resource Extraction and Aboriginal Community Development in Northern Alberta. Killam Research Project.

Some relevant publications include: 2005. The New Imperial Order. Indigenous Responses to Globalization. London, Eng.: Zed Books; New Zealand & Australia: Huia Books. Elaine Coburn, Elaine; Stewart-Harawira, Makere; Moreton-Robinson, Aileen & Sefa-Dei, George (2013). Unspeakable things: Indigenous research and social science. Socio (2), 2013, in press. http://socio.hypotheses.org

Stewart-Harawira, M. (2013)Challenging Knowledge Capitalism. Indigenous Research in the 21st Century. Socialist Studies / Études socialistes, North America, Vol. 9, 1, May 2013, available at: http://www.socialiststudies.com/index.php/sss/article/view/294. Stewart-Harawira, M. (2012). Returning the sacred: Indigenous ontologies in perilous times. Williams, L., Roberts, R., and McIntosh, A., (Eds). Radical Human Ecology: Intercultural and Indigenous Approaches. Ashgate Publishing Group: U.K. Stewart-Harawira, M. (2011). Epistemological Equity and Its Discontents: Indigenous Knowledge in the Academy. M. Smith (Ed.). Understudy: Equity in the Academy. Toronto, Canada: University of Toronto Press. (Under review) Stewart-Harawira, M. (2009). Responding to a Deeply Bifurcated World. Marshall Beiers (Ed.). Indigenous Diplomacies in the 21st Century. Palgrave MacMillan.

GE.08-14940 (E) 200808

UNITED NATIONS

A

General Assembly Distr. GENERAL

A/HRC/9/9 11 August 2008

Original: ENGLISH

HUMAN RIGHTS COUNCIL Ninth session Agenda item 3

PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS, CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS, INCLUDING THE RIGHT TO DEVELOPMENT

Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, S. James Anaya*

Summary

The present report is submitted in accordance with Human Rights Council resolution 6/12, and is the first report of Professor S. James Anaya in his capacity as Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people. The resolution requires the Special Rapporteur, inter alia, to promote the United Nations Declaration on the Rights of Indigenous Peoples and other international instruments relevant to the advancement of the rights of indigenous peoples. On this basis, the Special Rapporteur provides an analysis of the Declaration, in the context of other international instruments specifically regarding indigenous peoples and human rights instruments of general applicability. Reflecting the common international body of opinion regarding the rights of indigenous peoples, the Declaration elaborates on general human standards as they apply to the specific context of indigenous peoples, with a particular emphasis on the remedial measures required to address the historical contemporary denial of their rights. The last section of the report analyses the different measures required to implement and make operative the rights affirmed in the Declaration, a process which involves a joint effort by States, the United Nations system, indigenous peoples and relevant civil society actors.

* The present report was submitted after the deadline due to the tight time frame between the appointment of the Special Rapporteur and the deadline for the submission of the report.

A/HRC/9/9 page 2

CONTENTS

Paragraphs Page

Introduction .................................................................................................... 1 - 5 3

I. SUMMARY OF ACTIVITIES ............................................................ 6 - 13 4

A. Activities carried out by the Special Rapporteur ........................ 6 - 7 4

B. Future activities............................................................................ 8 - 13 4

II. SCOPE OF THE MANDATE OF THE SPECIAL RAPPORTEUR ................................................................... 14 - 17 5

III. THE DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES AND THE LARGER BODY OF RELEVANT INTERNATIONAL SOURCES .......................................................... 18 - 43 6

A. Instruments not specific to indigenous peoples and human rights norms of general applicability .............................. 20 - 30 7

B. The International Labour Organization conventions .................. 31 - 33 11

C. The character and general content of the Declaration ................ 34 - 43 11

IV. MECHANISMS TO OPERATIONALIZE THE RIGHTS AFFIRMED IN THE DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES ............................................................. 44 - 84 14

A. States ........................................................................................... 44 - 59 14

B. The United Nations system ......................................................... 60 - 73 17

C. Indigenous peoples ..................................................................... 74 - 79 21

D. Civil society ................................................................................ 80 - 84 23

V. CONCLUSIONS .................................................................................. 85 - 90 24

A/HRC/9/9 page 3

Introduction

1. The mandate of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people was originally established by the Commission on Human Rights in 2001 (by resolution 2001/57), and subsequently extended by the Commission (resolution 2004/62), the General Assembly (resolution 60/251) and the Human Rights Council (resolution 5/1). On 28 September 2007, the Human Rights Council decided to renew the mandate of the Special Rapporteur for an additional period of three years, reframing the Commission’s original resolution (resolution 6/12).

2. On 28 March 2008, at its seventh session, the Council decided to appoint Professor S. James Anaya, from the United States of America as the new mandate-holder. After fulfilling the formal requirements set forth in the Code of Conduct for Special Procedures’ Mandate Holders of the Human Rights Council (resolution 5/2, para. 5), Professor Anaya assumed his mandate on 1 May 2008.

3. This document presents the Special Rapporteur’s first report to the Council, in which he wishes to provide a number of reflections concerning the operationalization of the human rights norms affirmed in the United Nations Declaration on the Rights of Indigenous Peoples and other relevant international instruments. The report consists of four parts. Section I provides a brief description of the activities undertaken by the Special Rapporteur from 1 May to 1 August 2008, including a general plan of proposed activities for the coming year. Section II presents an overview of the Special Rapporteur’s mandate in accordance with resolution 6/12 and in relation to the Declaration. Section III provides an analysis of the Declaration within the context of other instruments and sources of human rights norms concerning the rights of indigenous peoples. An assessment of the different mechanisms required for promoting the implementation of the Declaration is provided in the last section.

4. Addendum 1 to the present report contains a summary of communications sent to Governments and replies received, as well as observations by the Special Rapporteur. Addendum 2 is the report of the former mandate-holder, Professor Rodolfo Stavenhagen, on his official mission to Bolivia from 25 November to 7 December 2007.1

5. The Special Rapporteur wishes to gratefully acknowledge the trust he has received from the Human Rights Council to carry out his duties, and wishes to thank the Office of the High Commissioner for Human Rights (OHCHR) and its staff for their committed assistance, as well as to the individual experts that have assisted in the preparation of this report. He also wishes to acknowledge the institutional support provided to the mandate of the Special Rapporteur by the University of Arizona Indigenous Peoples Law and Policy Program. Finally, the Special Rapporteur would like to express his deep gratitude and admiration for the work of

1 A preliminary note with the main findings of the former Special Rapporteur’s mission to Bolivia was presented to the Council during its sixth session (A/HRC/6/15/Add.2).

A/HRC/9/9 page 4 the former mandate-holder, Professor Rodolfo Stavenhagen. The Special Rapporteur will aim to carry out his work with a view to providing continuity to the achievements and following up on the challenges of the last seven years with a deep sense of humility and purpose.

I. SUMMARY OF ACTIVITIES

A. Activities carried out by the Special Rapporteur

6. Since the Special Rapporteur assumed his mandate on 1 May 2008, he has engaged in an initial dialogue with representatives of several Governments, indigenous peoples’ organizations, and non-governmental organizations (NGOs), as well as with individual experts and members of the United Nations secretariat and bodies, including the Permanent Forum on Indigenous Issues and the Expert Mechanism on the Rights of Indigenous Peoples, and with representatives of specialized agencies, including the United Nations Development Programme (UNDP), the International Labour Organization (ILO) and the World Bank.

7. Following the initiative of the President of the Constitutional Assembly of Ecuador and of various indigenous organizations, and as part of the programme of technical assistance by UNDP in the country, the Special Rapporteur visited Ecuador from 28 to 29 May 2008, with a view to contributing to the ongoing debates in the country regarding the process of constitutional review. During his working visit, the Special Rapporteur had the opportunity to engage in a constructive dialogue with members of the Constitutional Assembly, experts, and representatives of indigenous organizations and of the Confederation of Indigenous Nationalities of Ecuador (CONAIE). The Special Rapporteur submitted a number of observations to the Government regarding some of the issues raised during his working visit, in light of the relevant international norms (see A/HRC/9/9/Add.1).

B. Future activities

8. From 14 to 25 August 2008, the Special Rapporteur will undertake an official visit to Brazil, within the framework of the Government’s open invitation to United Nations special procedures and at the request of several indigenous organizations. In addition, the Special Rapporteur is currently engaged in a dialogue with the Government of Nepal concerning the possibility of conducting an official mission to the country in the upcoming months, as well as with other Governments, including those of the Russian Federation, Indonesia and the Republic of the Congo.

9. Following a recommendation of the Permanent Forum, the Special Rapporteur, together with the Special Rapporteur on violence against women, its causes and consequences, will participate in an Asia-Pacific regional NGO consultation on “Violence against indigenous women in Asia-Pacific”. The consultation is being organized by the Asia Pacific Forum on Women, Law and Development and will be held in New Delhi on 15 and 16 October 2008.

10. With a view to improving the effectiveness of and coordination between the existing bodies within the United Nations system with specific mandates on the rights of indigenous peoples, the Special Rapporteur is assisting with the organization of a working meeting with

A/HRC/9/9 page 5 members of the Permanent Forum and of the Expert Mechanism on the Rights of Indigenous Peoples. The meeting is being organized by the International Work Group on Indigenous Affairs and the Almáciga Intercultural Work Group and will take place in Madrid in February 2009.

11. The Special Rapporteur is determined to engage all relevant actors in a constructive dialogue on pressing issues of concern to indigenous peoples, including transnational companies. Building on other initiatives in this regard, including a forthcoming OHCHR expert seminar and a request by the Permanent Forum for a study on transnational corporations and other business enterprises, the Special Rapporteur is planning to participate in a technical meeting regarding experiences, best practices and potential models for the resolution of conflicts arising from commercial natural resource extraction on indigenous territories. The meeting, which will promote a dialogue between Governments, indigenous peoples’ NGOs and transnational companies, is being organized by the UNESCO Centre of Catalunya and Kreddha (the International Peace Council for States, Peoples and Minorities), and is anticipated to take place in September 2009 in Sitges, Spain.

12. As observed by the former Special Rapporteur, the recognition of indigenous legal systems and their harmonization with State legal orders is another matter that presents complex challenges that must be met in order to secure the full enjoyment of the human rights of indigenous peoples.2 In order to assist and promote practical initiatives to meet these challenges, the Special Rapporteur plans to form a research partnership on plural legal orders with the International Council on Human Rights Policy. This will involve a consultative research process with a cross-section of actors to review existing jurisdictional arrangements, examine best practices and develop action-oriented proposals for the effective recognition of indigenous legal systems.

13. Finally, drawing on the experiences of the former Special Rapporteur and other special procedures mandate-holders, the Special Rapporteur is developing working methods to enhance the effectiveness of his handling of the numerous communications he receives alleging violations of the human rights of indigenous peoples. These working methods will demonstrate responsiveness to indigenous peoples whose human rights allegedly are being violated, providing them a meaningful conduit to have their legitimate concerns appropriately addressed; identify and assess root or systemic causes of human rights violations, and not just the immediate manifestations of underlying problems; and engage States and other actors concerned in a constructive dialogue to advance solutions to problem situations, building on relevant progress and good practices already achieved.

II. SCOPE OF THE MANDATE OF THE SPECIAL RAPPORTEUR

14. The Commission on Human Rights, in its resolution 2001/57, established the mandate of the Special Rapporteur with the authority, inter alia, to “gather, request, receive and exchange information and communications from all relevant sources” concerning human rights violations

2 E/CN.4/2004/80.

A/HRC/9/9 page 6 against “indigenous people themselves and their communities and organizations”, and to “formulate recommendations and proposals … to prevent and remedy” such violations (para. 1). The Special Rapporteur was further invited to “take into account a gender perspective” and pay special attention to the situation of indigenous women and children (paras. 2-3).

15. In its resolution 6/12, the Council expanded the Commission’s original resolution, adding directives for the Special Rapporteur to work cooperatively with States, indigenous peoples, United Nations and regional bodies, and non-governmental organizations, and to pay particular attention to both the obstacles preventing full enjoyment of indigenous peoples’ human rights and to best practices in overcoming these obstacles. Significantly, resolution 6/12 further directs the Special Rapporteur to “promote the United Nations Declaration on the Rights of Indigenous Peoples and international instruments relevant to the advancement of the rights of indigenous peoples, where appropriate” (para. 1 (g)), thus providing the Special Rapporteur’s activities with a clear normative framework.

16. In recasting the original mandate, the Council underlined the role of the Special Rapporteur in promoting and facilitating a dialogue with Governments, indigenous peoples and other stakeholders to find effective ways to fully realize the rights of indigenous peoples which are affirmed in the Declaration and other international sources, in the spirit of respect, cooperation and mutual understanding that underpins the Declaration.

17. One of the Special Rapporteur’s main tasks in performing this role is to contribute to a better understanding, by the Council and all parties involved, of the legal, political, economic and institutional implications of the international recognition of the rights of indigenous peoples. With this objective in mind, the Special Rapporteur’s initial report aims at relating the Declaration on the Rights of Indigenous Peoples, the most recent and authoritative statement on the rights of these peoples as recognized internationally, to the larger body of relevant international human rights norms and instruments; and at examining ways in which the Declaration can be fully operationalized and put into practice.

III. THE DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES AND THE LARGER BODY OF RELEVANT INTERNATIONAL SOURCES

18. During the last three decades, the demands for recognition of indigenous peoples across the world have led to the gradual emergence of a common body of opinion regarding the content of the rights of these peoples on the basis of long-standing principles of international human rights law and policy. This common normative understanding has been promoted by international and regional standard-setting processes; by the practice of international human rights bodies, mechanisms and specialized agencies; and by a significant number of international conferences and expert meetings. The emergence of this common understanding has further been reflected in and supported by widespread State practice and constitutional, legislative and institutional reforms at the domestic level. The Declaration on the Rights of Indigenous Peoples is the most important of these developments globally, encapsulating as it does the widely shared understanding about the rights of indigenous peoples that has been building over decades on a foundation of previously existing sources of international human rights law.

A/HRC/9/9 page 7 19. This section provides a brief synthesis of the sources and general content of existing international standards that affirm and promote the rights of indigenous peoples. These sources include, in addition to the Declaration, international instruments not specific to indigenous peoples and human rights norms of general applicability, especially as applied by authoritative human rights bodies and mechanisms when addressing indigenous issues, and the International Labour Organization conventions concerning indigenous peoples.3

A. Instruments not specific to indigenous peoples and human rights norms of general applicability

20. To be sure, indigenous individuals and peoples hold the same rights that are recognized to all individuals and peoples. Article 1 of the Declaration explicitly restates this basic principle, by affirming that “indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law”. From this perspective, all general human rights principles and norms apply equally to indigenous peoples, and are to be interpreted and applied with regard to the specific historical, cultural, social and economic circumstances of these peoples.

21. This approach has long been taken by international bodies and mechanisms in their authoritative interpretation of universal or regional instruments and human rights norms of general applicability. United Nations treaty bodies have significantly contributed to the common normative understanding of the rights of indigenous peoples in their application of the human rights treaties to which they respectively are attached. They have done so through evaluation of State party reports, complaint procedures, or issuance of interpretive comments or recommendations.

22. Since the late 1980s, the Human Rights Committee has taken a leading role in developing a body of jurisprudence concerning the rights of indigenous peoples under several provisions of the International Covenant on Civil and Political Rights (ICCPR), including the rights to privacy and to family, and, especially, the rights of persons belonging to ethnic, religious or linguistic minorities. The Committee’s general comment No. 23 (1994) on article 27 of ICCPR advances a broad interpretation of the international norm of cultural integrity in the context of indigenous peoples, understanding that norm to encompass all aspects of indigenous culture including rights

3 An initial survey of the international and domestic standards regarding the rights of indigenous peoples was provided by the first report of the Special Rapporteur to the Commission on Human Rights. E/CN.4/2002/97, paras. 6-33. This survey was subsequently supplemented by the Special Rapporteur, with a particular emphasis on processes of domestic legal and constitutional reform, judicial decisions, and the practice of international human rights bodies. See E/CN.4/2006/78, paras. 7-13.

A/HRC/9/9 page 8 to lands and resources.4 Acting under the reporting procedure, the Human Rights Committee has further considered aspects of indigenous political participation, self-government and autonomy within the framework of the self-determination clause of article 1 of the Covenant.

23. The Committee on the Elimination of Racial Discrimination (CERD) has contributed to promoting an understanding of the human rights obligations of States parties to the International Convention on the Elimination of All Forms of Racial Discrimination with regard to indigenous peoples. In 1997, the Committee adopted its general recommendation No. 23 on indigenous peoples, interpreting the norm of non-discrimination to protect aspects of indigenous cultural identity and language, economic and social development, effective participation, and rights over lands, territories and resources. Subsequent general recommendations of the Committee have addressed sexual and gender-based discrimination against indigenous women and discrimination of indigenous peoples in their administration of justice, including denial of their indigenous legal systems.5 Based on these interpretations of the Convention, CERD has played an increasingly active role in combating various forms of discrimination against indigenous peoples in its examination of the reports of States parties to the Convention. Most of the specific country situations that have been dealt with or are currently being monitored by CERD under its early warning/urgent action procedure are related to indigenous communities and peoples.

24. The Committee on Economic, Social and Cultural Rights has similarly identified specific normative implications for indigenous peoples of several of the rights affirmed in the International Covenant on Economic, Social and Cultural Rights. These include the rights to adequate housing, including legal protection against forced evictions;6 to adequate food;7 to education without discrimination;8 to the highest attainable standard of health;9 to water;10 and to benefit from scientific, literary or artistic production.11

4 Paras. 24-25.

5 General recommendation No. 25 (2000), para. 2; general recommendation No. 31, paras. 27, 36, 41.

6 General comment No. 7, para. 10.

7 General comment No.12, para. 13.

8 General comment No. 13, para. 50.

9 General comment No. 14, paras. 12 (b) and 27.

10 General comment No. 15, paras. 7 and 16.

11 General comment No. 17 (2006), paras. 9, 32, 45, and 18.b.iii.

A/HRC/9/9 page 9 25. Articles 29 and 30 of the Convention on the Rights of the Child address specifically the rights of indigenous children to their own cultures, religions and languages. On the basis of these and other provisions of the Convention, the Committee on the Rights of the Child has devoted considerable attention to the specific needs and circumstances of indigenous children in its review of the application of the Convention.12 The Committee against Torture, the Committee on the Elimination of Discrimination against Women (CEDAW), and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families have also paid specific attention to the situation of indigenous persons in their periodic examination of States’ implementation of the respective conventions. CEDAW has further addressed the special circumstances faced by indigenous women in its general recommendation No. 24 (1999) on women and health.13

26. In addition to the activities of the United Nations human rights mechanisms, provisions directly related to the human rights of indigenous peoples have been included in the declarations and programmatic statements emanating from United Nations issue-specific world conferences in the last several years. Notably, in the Vienna Declaration and Programme of Action, the World Conference on Human Rights called upon States to “take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination” and “recognize the value and diversity of their distinct identities, cultures and social organization”.14

27. Indigenous peoples’ contribution to cultural diversity and intangible heritage worldwide has been acknowledged in instruments recently adopted by the United Nations Educational, Cultural and Scientific Organization (UNESCO).15 In addition, principles derived from indigenous peoples’ rights in connection with lands, territories and resources have been incorporated into a number of international environmental instruments.16 This includes the provisions of article 8 (j) of the Convention on Biological Diversity, affirming indigenous peoples’ rights to their traditional knowledge, which has led to a specific follow-up mechanism

12 See in particular the recommendations of the Day of General Discussion on the rights of indigenous children, 3 October 2003.

13 Para. 6.

14 Para. 20.

15 UNESCO Declaration on Cultural Diversity (2001), art. 4; Convention for the Safeguarding of the Intangible Cultural Heritage (2003), sixth preambular paragraph.

16 United Nations non-legally binding authoritative statement of principles for a global consensus on the management, conservation and sustainable development of all types of forests (1992), paras. 2, 5-6, 12; United Nations Framework Convention on Climate Change (1992), art. 3; United Nations Convention to combat desertification in those countries experiencing serious droughts and/or desertification, particularly in Africa (1994), art. 10.2.e.

A/HRC/9/9 page 10 that involves indigenous peoples. Indigenous peoples’ concerns are also at the centre of the ongoing discussions at the World Intellectual Property Organization regarding the protection of traditional knowledge, genetic resources and traditional cultural expressions.

28. At the regional level, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have played a path-breaking role in developing a distinct body of jurisprudence concerning the rights of indigenous peoples in the Americas, with an important normative effect in other regions. These bodies have interpreted the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights in a way that takes account of the specific circumstances of indigenous peoples and tribal communities, affirming for them the right to life, including a dignified collective existence;17 the right of property over lands, territories and natural resources,18 including the rights to consultation and consent;19 and the right to political participation in accordance with their cultural patterns.20 A special commitment towards the promotion and protection of the rights of indigenous peoples is additionally reflected in article 9 of the Inter-American Charter of the Organization of American States (2001).

29. In 2000, the African Commission on Human and Peoples’ Rights decided to establish a working group on indigenous peoples/communities as part of its system of thematic special procedures. The first thematic report produced by the Working Group interpreted several of the provisions of the African Charter on Human and Peoples’ Rights, as well as the Commission’s jurisprudence, in consistency with the internationally prevailing understanding of the rights of indigenous peoples.21 Since then, the Working Group has continued its activities regarding indigenous issues, including undertaking a number of country visits.

30. The practice of international bodies and mechanisms in recent decades has significantly contributed to building an understanding of the rights of indigenous peoples on the basis of general human rights norms and a wide array of international instruments. The authoritative interpretation of these norms has contributed to the gradual crystallization of a universal

17 I/A HR Court, Masacre de Plan de Sánchez (Guatemala), Series C (No. 105) (2004).

18 I/A HR Court, Awas Tingni Mayagna (Sumo) Indigenous Community v. Nicaragua, Series C (No. 79) (2001); Moiwana Community v. Surinam, Series C (No. 124) (2005); Yakye Axa Indigenous Community v. Paraguay, Series C (No. 125) (2005); Sawhoyamaxa Indigenous Community v. Paraguay, Series C (No. 146) (2006).

19 I/A HR Court, Yatama v. Nicaragua, Series C (No. 127) (2005).

20 I/A HR Court, Saramaka People v. Suriname, Series C (No. 172) (2007).

21 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, adopted by the African Commission on Human and Peoples’ Rights at its 28th ordinary session (2005).

A/HRC/9/9 page 11 common understanding of the minimum content of the rights of these peoples as a matter of international law and policy. This common understanding has been further reflected in, strengthened and elaborated by the adoption of international instruments that are specifically focused on the rights of indigenous peoples.

B. The International Labour Organization conventions

31. The ILO was historically the first international organization to promote specific international norms and policies regarding indigenous peoples. Following earlier initiatives, the ILO adopted the Convention concerning the protection and integration of indigenous and other tribal or semi-tribal populations in independent countries (No. 107) in 1957. Although it is somewhat a reflection of the paternalistic and assimilation-oriented assumptions of the time, the protective thrust of the Convention nevertheless contributed to signalling the need for international attention and cooperation with regard to indigenous peoples.

32. In the mid-1980s the International Labour Conference decided to revise Convention No. 107 in the form of a new instrument, resulting in the adoption of the Convention concerning indigenous and tribal peoples in independent countries (No. 169) in 1989. This decision reflected the evolving normative understanding concerning the rights of indigenous peoples which at that time was being generated, especially by discussions within the United Nations, to develop an indigenous rights declaration. A momentous step in the consolidation of the contemporary international regime on indigenous peoples, Convention No. 169 provides significant recognition of indigenous peoples’ collective rights in key areas, including cultural integrity; consultation and participation; self-government and autonomy; land, territory and resource rights; and non-discrimination in the social and economic spheres. The norms embodied in the Convention have been subsequently developed through the interpretive practice of the ILO supervisory bodies, notably the Committee of Experts and the Governing Body’s tripartite committees acting under article 24 of the ILO Constitution.

33. Most States of Latin America as well as some States from other regions have ratified Convention No. 169, with a total of 19 ratifications thus far. Despite the relatively small number of ratifications from outside the Western Hemisphere, the general normative underpinning and specific human rights principles of the Convention have acted and still act as a powerful catalyst for the consolidation at the international level of the common normative understanding regarding the rights of indigenous peoples. This is reflected in numerous processes of constitutional, legal and institutional reform at the domestic level - including in States that are not formally part of the Convention - as well as in the development of other international instruments, programmes and policies.

C. The character and general content of the Declaration

34. While influenced by discussions within the United Nations around the initiative to develop an indigenous rights declaration, the development of Convention No. 169 in 1989 contributed in turn to the process that led finally to the adoption of the United Nations Declaration on 13 September 2007. The protracted negotiations that stretched over two and a half decades and ended with the adoption of the Declaration engaged States, indigenous peoples and independent experts in an extended multilateral discussion that was central to the emergence, internationally, of a common body of opinion on the rights of indigenous peoples.

A/HRC/9/9 page 12 35. The Declaration was adopted by General Assembly resolution 61/295 by an overwhelming majority of Member States, with 143 voting in favour, 4 against and 11 abstaining. While the explanatory statements of the four States that voted against adoption of the Declaration (Australia, Canada, New Zealand, and United States of America) showed disagreement with the wording of specific articles or concerns with the process of adoption, they also expressed a general acceptance of the core principles and values advanced by the Declaration.

36. The basic normative justification of the Declaration is stated in the sixth preambular paragraph, which acknowledges that “indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests”. The Declaration’s preamble thus stresses the essentially remedial purpose of the instrument. Far from affirming special rights per se, the Declaration aims at repairing the ongoing consequences of the historical denial of the right to self-determination and other basic human rights affirmed in international instruments of general applicability.

37. The Declaration affirms in its article 3 the right of indigenous peoples to self-determination, in terms that restate the common provisions of article 1 of the two 1966 International Covenants. Reflecting the state of contemporary international law in relation to this principle as well as the demands of indigenous peoples themselves, the affirmation of self-determination in the Declaration is deemed compatible with the principle of territorial integrality and political unity of States.22

38. On this grounding, the Declaration provides a detailed list of rights that constitute “the minimum standards for the survival, dignity and well-being of indigenous peoples of the world” (art. 43). The Declaration reaffirms basic individual rights to equality and non-discrimination, life and personal integrity and freedom, and nationality and access to justice; and it calls for special attention to specific rights and needs of indigenous elders, women, youth, children and persons with disabilities.23 At the same time, the Declaration affirms rights of a collective character in relation to self-government and autonomous political, legal, social and cultural institutions; cultural integrity, including cultural and spiritual objects, languages and other cultural expressions; lands, territories and natural resources; social services and development; treaties, agreements and other constructive arrangements; and cross-border cooperation.

39. Together with affirming the aspects of self-determination related to maintaining spheres of autonomy, the Declaration also reflects the common understanding that indigenous peoples’ self-determination at the same time involves a participatory engagement and interaction with the larger societal structures in the countries in which they live. In this connection, the Declaration

22 Art. 46 (1).

23 Art. 22 (1).

A/HRC/9/9 page 13 affirms indigenous peoples’ right “to participate fully, if they so choose, in the political, economic, social and cultural life of the State”;24 and to be consulted in relation to decisions affecting them, with the objective of obtaining their prior, free and informed consent.25

40. The Declaration does not affirm or create special rights separate from the fundamental human rights that are deemed of universal application, but rather elaborates upon these fundamental rights in the specific cultural, historical, social and economic circumstances of indigenous peoples. These include the basic norms of equality and non-discrimination, as well as other generally applicable human rights in areas such as culture, health or property, which are recognized in other international instruments and are universally applicable.

41. Albeit clearly not binding in the same way that a treaty is, the Declaration relates to already existing human rights obligations of States, as demonstrated by the work of United Nations treaty bodies and other human rights mechanisms, and hence can be seen as embodying to some extent general principles of international law. In addition, insofar as they connect with a pattern of consistent international and State practice, some aspects of the provisions of the Declaration can also be considered as a reflection of norms of customary international law.26 In any event, as a resolution adopted by the General Assembly with the approval of an overwhelming majority of Member States, the Declaration represents a commitment on the part of the United Nations and Member States to its provisions, within the framework of the obligations established by the United Nations Charter to promote and protect human rights on a non-discriminatory basis.

42. While the adoption of the Declaration marks the height of decades of standard-setting regarding the rights of indigenous peoples, it is also important to note that the Organization of American States continues to be involved in the process of developing an American declaration of the rights of indigenous peoples. As was the case during the drafting of the United Nations Declaration, indigenous peoples are actively involved in the search for a common consensus with States regarding this instrument.

43. The United Nations Declaration reflects the existing international consensus regarding the individual and collective rights of indigenous peoples in a way that is coherent with, and expands

24 Art. 5. See also art. 18 (affirming the right to participate in “the decision-making in matters which would affect their rights”).

25 Art. 19 (“States shall consult and cooperate in good faith with the indigenous peoples concerned … in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them”). For an analysis of the principle of free, prior and informed consent, see observations concerning Ecuador (A/HRC/9/9/Add.1).

26 See S. James Anaya and Siegfried Wiessner, “OP-ED: The UN Declaration on the Rights of Indigenous Peoples: Towards Re-empowerment”, Jurist (3 October 2007).

A/HRC/9/9 page 14 upon, the provisions of ILO Convention No. 169, as well as with other developments, including the interpretations of other human rights instruments by international bodies and mechanisms. As the most authoritative expression of this consensus, the Declaration provides a framework of action towards the full protection and implementation of these rights.

IV. MECHANISMS TO OPERATIONALIZE THE RIGHTS AFFIRMED IN THE DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES

A. States

44. The seventh preambular paragraph of the Declaration emphasizes the “urgent need to respect and promote the inherent rights of indigenous peoples”. Like any other human rights instrument does, the Declaration confers a pivotal role to State actors in the promotion and protection of the rights affirmed therein. The central role of the State is further reinforced by the essentially reparative orientation of the instrument, which requires States to take affirmative measures to attack the systemic problems that indigenous peoples face in the enjoyment of their human rights in ways that are consistent with their specific cultural characteristics and their own expressed wishes.

The call for positive or special measures

45. The Declaration requires that “States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration” (art. 38). This general mandate is further elaborated on in other provisions, with specific affirmative measures required from States in connection with almost all the rights affirmed in the Declaration.

46. The kind of State action required to operationalize the rights affirmed in the Declaration thus entails an ambitious programme of legal and policy reform, institutional action and reparations for past wrongs, involving a myriad of State actors within their respective spheres of competence. The former chair of the Working Group on Indigenous Populations, Ms. Erica-Irene Daes, described this process as “belated State-building”, a process “through which indigenous peoples are able to join with all the other peoples that make up the State on mutually-agreed upon and just terms, after many years of isolation and exclusion”.27 This spirit of cooperation and mutual understanding between States and indigenous peoples is a theme throughout the Declaration, including in the provision which underlines the value of historical and modern treaties or compacts as mechanisms to advance relations of cooperation between indigenous peoples and States (art. 37).

27 Erica-Irene A. Daes, “Some Considerations on the Right of Indigenous Peoples to Self-Determination”, 3 Transn’l L. & Contemp. Probs. 1, 9 (1993).

A/HRC/9/9 page 15 47. The positive or special measures required to operationalize the Declaration need to reach the existing local institutional arrangements and policy frameworks, which in some cases may have to be reformed to accommodate the particular needs of indigenous peoples, as underlined in the Declaration. Depending on the local context, specific policies, programmes and institutions may be required to promote the concerted action of government agencies regarding indigenous peoples. In those countries where they already exist, their terms of reference and goals should be framed by rights and principles affirmed in the Declaration.

48. As part of the general activities under its six mandated areas (economic and social development, culture, environment, education, health and human rights), the sessions of the Permanent Forum and expert meetings organized by its secretariat have produced an important body of specific recommendations that can be a useful tool for States in the planning and implementation of the measures required to operationalize the Declaration. Particularly tailored to State policies are, for instance, the Permanent Forum’s recommendations on the establishment of “comprehensive national indigenous education policies”.28

49. Together with the call for specific State action, articles 4 and 39 of the Declaration jointly call upon States to provide financial and technical support for the operation of indigenous self-governance institutions, without prejudice to the support provided through international cooperation. The need for such support naturally follows from the effective recognition of indigenous peoples’ self-governing or autonomous systems which necessarily connect to the wider political and institutional structures of the countries in which these peoples live. In addition, this State support helps empower indigenous peoples in their autonomous management and provision of social services, such as in the area of education, which also contributes to the fulfilment of the States’ general obligations with regard to the economic, social and cultural rights of citizens.

Legal reform and judicial action

50. Implementing the Declaration will normally require or may be facilitated by the adoption of new laws or the amendment of existing legislation at the domestic level, as envisaged by article 38 of the Declaration which calls for appropriate “legislative measures”. Also normally required will be new regulatory frameworks, which in most countries are still lacking or are insufficient. It is important to note that the legal and institutional transformations required by the Declaration are usually not sufficiently addressed solely by enacting specific “indigenous laws”, as many State have done, but rather will normally also involve the transformation of broader legal structures in key areas.

51. This is true, for instance, in relation to the provisions of the Declaration regarding indigenous peoples’ rights to “autonomy or self-government in matters relating to their internal and local affairs” (art. 4) and to “maintain and strengthen their distinct political, legal, economic, social and cultural institutions” (art. 5), including in the administration of justice (arts. 34-35).

28 E/2004/43/E/C.19/2004/23, para. 19.

A/HRC/9/9 page 16 Indigenous systems of autonomy or self-government carry a number of implications for broader State governance that have not been fully acknowledged in most countries, where indigenous autonomy or self-government still operates de facto and without the proper legal guarantees. The same holds true in relation to indigenous rights over their lands, territories and natural resources, as affirmed in articles 26 to 28 and related provisions of the Declaration. While these rights are generally recognized in many countries, their realization implies a whole package of legal and administrative transformations, particularly regarding property and natural resources law and administration.

52. In November 2007, Bolivia adopted a law to give full legal effect to the provisions of the Declaration in domestic law.29 Similar initiatives have been introduced in the legislative bodies of other countries. The Bolivian law represents an important initiative insofar as it signals the commitment of the State to implement the Declaration. However, such measures alone should not be seen as sufficient to fully operationalize the rights affirmed in the Declaration in the multiple specific areas in which government regulation and administration touch indigenous peoples’ concerns.

53. In a number of cases, the recognition of indigenous peoples and their rights as mandated by the Declaration may require changes of a constitutional nature. Based on this understanding, the Declaration has already been used as a normative reference in recent or ongoing constitutional revision processes, such as in Bolivia, Ecuador and Nepal.

54. Domestic courts also play a key role in operationalizing the rights of indigenous peoples as affirmed in international standards. Domestic courts should endeavour to conform their decisions to the Declaration in cases concerning indigenous peoples. Even if not empowered to directly apply the Declaration, domestic courts may and should use the Declaration as an interpretive guide in applying provisions of domestic law. A good practice in this regard is the recent decision of the Supreme Court of Belize in the case of Maya villages v. Attorney General, a case in which the Court used the Declaration and other international sources to guide its interpretation of the Constitution of Belize to uphold the rights of Maya villages over their traditional land.30

55. Legal recognition and judicial action are only potential preconditions for operationalizing the indigenous peoples’ rights under the Declaration at the local level. The former Special Rapporteur noted that recent processes of constitutional and legal reform in various countries have not necessarily led to actual changes in the daily lives of indigenous peoples, and an “implementation gap” continues to exist between “legislation and the day-to-day reality”.31

29 Ley Nº 3760, Gaceta Oficial Nº 3039 (7 de noviembre de 2007).

30 Manuel Coy et al. v. The Attorney General of Belize et al., Supreme Court of Belize, Claims No. 171 and 172 (19 October 2007).

31 E/CN.4/2006/78, para. 5.

A/HRC/9/9 page 17 Bridging this gap requires the concerted, goal-oriented action of a myriad of governmental actors within the scope of their respective fields of competence, and involves a mixture of political will, technical capacity, and financial commitment.

Mainstreaming and awareness-raising

56. While the operationalization of the Declaration requires State action in the form of policies, programmes, institutions and legal reforms that are specific to indigenous peoples, the principles and rights set forth in the Declaration should be mainstreamed into the different operative sectors of government, and should be taken into consideration in the wider policy-making processes and in the establishment of programmatic priorities.

57. This is particularly important in areas, emphasized in the Declaration, in which the realization of indigenous peoples’ rights is inextricably connected to general State policies, such as in the areas of education, culture, or health, and in State development strategies and plans. In this regard, the Permanent Forum and United Nations agencies such as ILO and UNDP have played a leading role in cooperating with States in mainstreaming the rights of indigenous peoples into national poverty reduction strategies aimed at meeting the Millennium Development Goals.32

58. In order to effectively mainstream the Declaration into general State policies and to promote the legal and institutional changes required to operationalize it, Governments should ensure that the different actors involved are aware of the Declaration and sufficiently understand its provisions. Accordingly, States should make efforts to raise awareness and provide technical training to government officials, members of the legislative branch and of national human rights institutions, judicial authorities and all other relevant actors, including civil society and indigenous peoples themselves.

59. The Special Rapporteur fully acknowledges the serious technical difficulties, as well as the economic, social, and political obstacles, that States encounter in undertaking the kind of systemic action and reforms required to fully and effectively respect the rights of indigenous peoples and to reverse the long-standing patterns of abuse and discrimination that they face. In the light of such difficulties, the United Nations system has considered that the situation of indigenous peoples is a matter of global concern and of urgent priority, and is deemed to play an important role in supporting State action towards the implementation of the Declaration.

B. The United Nations system

60. In its twentieth preambular paragraph, the Declaration emphasizes that “the United Nations has an important and continuing role in promoting and protecting the rights of indigenous peoples”. The United Nations special role had previously been affirmed by the

32 E/2005/43-E/C.19/2005/9, paras. 17-21.

A/HRC/9/9 page 18 General Assembly with the solemn proclamation of the International Year of the World’s Indigenous People in 1993,33 and subsequently, with the proclamation of the First Decade of the World’s Indigenous Peoples (1994-2004)34 and the Second Decade and plan of action.35

61. In view of this special role, the Declaration in article 41 explicitly calls upon the organs and specialized agencies of the United Nations system “to contribute to the full realization” of the Declaration, including, inter alia, through the mobilization of “financial cooperation and technical assistance”. Article 42 further underlines the role of United Nations bodies and specialized agencies, calling on them to “promote respect for and full applications of the provisions” of the Declaration and provide “follow-up” for its effective application. This is a joint task that pertains specially to United Nations human rights bodies and mechanisms, including but not limited to those with a particular mandate regarding the rights of indigenous peoples, as well as to the various United Nations programmes which in some way touch upon indigenous issues.

Human rights bodies and mechanisms

62. As seen, United Nations human rights mechanisms and bodies have played a crucial role in promoting and protecting the rights of indigenous peoples, while contributing to the development of a common normative understanding concerning the minimum content of these rights. Currently the most authoritative expression of this common understanding, the Declaration on the Rights of Indigenous Peoples constitutes an important tool in the regular promotional and protective activities of these bodies within their respective mandates and normative frames of reference.

63. The recently inaugurated mechanism of the Universal Periodic Review (UPR) of the Human Rights Council is an important tool in promoting the rights affirmed in the Declaration. Given the complementary and interrelated character of international human rights law, as well as the existing and developing jurisprudence on various human rights treaties by international bodies and mechanisms, it is clear that the provisions of the Declaration should factor into the interpretation of States’ international human rights obligations and the evaluation of the positive developments and challenges faced when implementing them. It is foreseeable that, as the Declaration is gradually mainstreamed and operationalized in the practice of both States and human rights bodies and mechanisms, it will become entrenched in the UPR process, contributing to defining the human rights obligations of the States under review and guiding the recommendations of the Human Rights Council’s Working Group on the Universal Periodic Review with regard to indigenous peoples.

33 General Assembly resolution 45/164.

34 General Assembly resolution 48/163.

35 General Assembly resolution 59/174.

A/HRC/9/9 page 19 64. The normative effect of the Declaration is not limited to the United Nations human rights system, but also influences as it should the action of regional human rights bodies. In the past, the text of the draft United Nations declaration was used by the Inter-American Commission on Human Rights as evidence of the content of indigenous rights under general principles of international law.36 In its decision in Saramaka People v. Suriname, the Inter-American Court referred to the Declaration, in relation to the American Convention on Human Rights, to uphold and define grounds for the rights of indigenous and tribal peoples over the natural resources existing within their territories.37 The Declaration may be expected to have a similar normative impact within the African and European human rights systems when indigenous issues in connection with relevant treaties are addressed.

United Nations mechanisms that specifically concern indigenous peoples

65. Within the United Nations system, existing mechanisms with mandates specifically regarding indigenous peoples include: the United Nations Permanent Forum on Indigenous Issues; the Expert Mechanism on the Rights of Indigenous Peoples, and the mandate of the Special Rapporteur. These mechanisms have special roles in promoting the operationalization of the Declaration.

66. Article 42 of the Declaration expressly mentions the Permanent Forum on Indigenous Issues as having a responsibility to promote full implementation of the Declaration. As a subsidiary body of the Economic and Social Council, the Permanent Forum has in the Declaration an essential instrument for the fulfilment of its threefold mandate of providing “expert advice and recommendations on indigenous issues to the Council, as well as to programmes, funds and agencies of the United Nations”; of promoting “the integration and coordination of activities relating to indigenous issues within the United Nations system”; and of preparing and disseminating “information on indigenous issues”.38

67. In its first session after the Declaration was adopted, the Permanent Forum hailed the adoption of the Declaration and pledged “its commitment to making it a living document throughout its work”.39 The Permanent Forum further affirmed the Declaration as its legal framework, and it has started to apply specific provisions thereof in formulating its own recommendations regarding its substantive mandated areas, as well as in the Forum’s work under

36 Marie and Carrie Dann v. United States, Report No. 75/02, Case 11.140 (2002), para. 118; Maya Indigenous Communities of the Toledo District v. Belize, Report No. 40/04, Case 12.053 (2004), para. 118.

37 See para. 28 above.

38 Economic and Social Council resolution 2000/22, para. 2.

39 E/2008/43-E/C.19/2008/13, para. 128.

A/HRC/9/9 page 20 its thematic discussions and other priorities.40 The Permanent Forum has furthermore started to look at States as direct partners in a “constructive dialogue” on the “achievements, challenges and future action required in relation to indigenous peoples’ issues in each country under the Declaration”.41

68. The preamble of Human Rights Council resolution 6/36 establishing the new Expert Mechanism on the Rights of Indigenous Peoples in December 2007 expressly refers to the Declaration.42 This reference provides the Expert Mechanism with a clear normative frame of reference for the fulfilment of its mandate to provide the Council with “thematic expertise” on the rights of indigenous peoples, particularly through studies and research-based advice.43 The studies to be undertaken by the Expert Mechanism will therefore be of key importance in operationalizing the rights affirmed in the Declaration and in mainstreaming them into the Council’s general activities on the promotion and protection of human rights.

69. The second mechanism of the Human Rights Council with a specific mandate on indigenous issues is the mandate of the Special Rapporteur, which, as discussed, entrusts the mandate-holder with the responsibility of promoting the Declaration and other relevant international instruments related to the rights of indigenous peoples. The Special Rapporteur fully acknowledges the need for close cooperation and partnership with the Permanent Forum and the Expert Mechanism with a view to working together in the important task of promoting the operationalization of the rights affirmed in the Declaration. The Special Rapporteur is sincerely committed to this task as part of his forthcoming activities.

Specialized agencies

70. The specialized agencies and United Nations programmes and funds are explicitly considered by the Declaration as important actors for the implementation of the Declaration. The Declaration specifically calls for the engagement of the specialized agencies in the fields of “financial cooperation and technical assistance” (art. 41), and further calls upon the mainstreaming of Declaration into the agencies’ action at the local level (art. 42). In addition, the Declaration requires that the work of the agencies should ensure the “participation of indigenous peoples on issues affecting them” (art. 41).

71. As seen, the important role of specialized agencies in promoting the rights of indigenous peoples is underlined by the establishment of the Permanent Forum with a particulate mandate entrusted to it by the Economic and Social Council to interact with United Nations agencies in the mainstreaming of indigenous issues within the United Nations system. In 2001 the agencies 40 Ibid., para. 132.

41 Ibid., para. 133.

42 Second preambular paragraph.

43 Para. 1.

A/HRC/9/9 page 21 established the Inter-Agency Support Group on Indigenous Issues, which acts as a clearing house coordinating the action of its different members to support the Permanent Forum’s work. In recent years, some of the agencies members of the Group have adopted new policies, programmes or guidelines or amended existing ones regarding indigenous peoples in ways that are generally - but not necessarily fully - consistent with the principles and rights affirmed in the Declaration. These include, inter alia, the UNDP “Policy of Engagement” with indigenous peoples (2001), the World Bank Operational Policy and Bank Policy on Indigenous Peoples (OP/BP 4.10) (2005), and, at the regional level, the Inter-American Development Bank’s Operational Policy on Indigenous Peoples (OP-765) (2006).

72. Once the Declaration was adopted, the Permanent Forum called upon the specialized agencies to “review their policies and programmes in order to comply with the provisions contained in the Declaration”, with a particular emphasis on ensuring respect for the rights to self-determination and free, prior and informed consent.44 An encouraging initiative in this regard is the adoption in February 2008 of the United Nations Development Group’s Guidelines for Indigenous Peoples’ Issues. These guidelines are intended to assist the United Nations system to mainstream the rights of indigenous peoples in operational activities and programmes at the country level. In addition, UN-Habitat and UNDP are currently engaging in the development of internal policies regarding indigenous peoples, within the framework of the Declaration.

73. The implications of the Declaration for the work of the specialized agencies were analysed by the former Special Rapporteur in his report on the human rights-based approach to development (A/HRC/6/15). He identified international agencies as distinct duty-bearers in this regard, calling upon them to “refrain from supporting programmes and projects which, either directly or indirectly, are or could be conducive to the violations of the rights of indigenous peoples” (para. 72). He further recommended that 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 their rights (para. 74).

C. Indigenous peoples

74. The objective stated in the eighteenth preambular paragraph of the Declaration of enhancing “harmonious and cooperative relations between the State and indigenous peoples” involves indigenous communities, authorities and organizations as fundamental actors in realizing the rights affirmed in this instrument. The Declaration’s affirmation of the right to self-determination and extension of that right into the different spheres of indigenous life requires positive engagement, in a spirit of partnership, by both States and indigenous peoples, without which the Declaration would never be effective.

44 E/2008/43-E/C.19/2008/13, para. 136.

A/HRC/9/9 page 22 75. Therefore, wide affirmation of the rights of indigenous peoples in the Declaration does not only create positive obligations for States, but also bestows important responsibilities upon the rights-holders themselves. This interaction between the affirmation of rights and the assumption of responsibilities is particularly crucial in areas in which the Declaration affirms for indigenous peoples a large degree of autonomy in managing their internal and local affairs.

76. Positive action by indigenous peoples themselves is by definition required for the exercise of their rights to maintain and develop institutions and mechanisms of self-governance. The Declaration simultaneously acknowledges the economic implications of indigenous self-government or autonomy, affirming indigenous peoples’ rights to State financial and technical assistance and international cooperation in order to exercise their rights and fulfil their responsibilities in this regard (arts. 4 and 39).

77. Notably, indigenous peoples are called upon to exercise responsibilities for the preservation, exercise and development of their cultural heritage and expressions.45 The Declaration further acknowledges indigenous peoples’ inter-generational responsibilities, including environmental stewardship, with regard to their traditional lands, territories and resources (arts. 25 and 29).

78. In exercising their rights and responsibilities under the Declaration, indigenous peoples themselves should be guided by the normative tenets of the Declaration. Implementation of the Declaration will invariably require indigenous peoples’ good faith, active participation in a spirit of mutual cooperation, when States consult as they must with indigenous peoples on matters affecting their rights with a view to obtaining their free, prior and informed consent. The objective for both parties in such consultations should be to reach a mutual agreement that builds harmonious partnerships.

79. The implementation of the Declaration by indigenous peoples may also require them to develop or revise their own institutions, traditions or customs through their own decision-making procedures. The Declaration recalls that the functioning of indigenous institutions should be “in accordance with international human rights standards” (art. 34) and calls for particular attention “to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities”, including in the elimination of all forms of discrimination and violence against indigenous children and women (art. 22). With an appropriate understanding of these provisions, the Declaration is a powerful tool in the hands of indigenous peoples to mainstream human rights within their respective societies in ways that are respectful to their cultures and values.

45 Article 12 (1) (right to indigenous religious and spiritual traditions); article 13 (1) (right to their languages, literature and philosophies); article 31 (1) (right to their traditional knowledge and technologies).

A/HRC/9/9 page 23

D. Civil society

80. Finally, the kind of systemic changes required to operationalize the Declaration at the local level cannot be ultimately achieved without involvement of society at large and engagement of social sectors such as the educational system, the media, the arts, religious groups, and the business community, for example.

81. Societal involvement is prerequisite for eliminating entrenched discrimination and prejudices against indigenous peoples, particularly in the fields of education, culture and information. In this regard, the Declaration mandates that indigenous peoples’ “cultures, traditions, histories and aspirations … shall be appropriately reflected in education and public information” (art. 15, para. 1), which is further extended to “privately owned media” (art. 16, para. 2). The respect for indigenous peoples’ cultural property and traditional knowledge further touches upon the activities of other societal actors, including churches, academic and research institutions, and museums.

82. In view of their impacts on the activities and daily life of indigenous peoples, local and transnational business enterprises also have an important responsibility to respect and promote the rights and principles of the Declaration. This is particularly relevant in relation to the guarantees set forth in article 32 of the Declaration regarding development or resource extraction projects affecting indigenous territories. In this connection, the Permanent Forum has called upon transnational corporations to respect the standards affirmed in the Declaration.46

83. In a similar vein, the Declaration should be promoted and respected by non-governmental development actors when their activities are related to indigenous peoples. As it does for State and international agencies, the Declaration not only provides NGOs with a set of clear programmatic priorities in their development activities affecting indigenous peoples, but also with a set of guidelines that should regulate the design and implementation of these activities.47 In addition, the adoption of the Declaration should encourage the mainstreaming of the rights of indigenous peoples into the activities of international and national human rights NGOs.

84. In the recent past, a number of local and international NGOs have played a central role in specifically supporting indigenous peoples’ demands and promoting the respect for their rights, for which they should be credited. They should be now seen as key actors in disseminating the content of the Declaration and in facilitating a constructive dialogue among States, indigenous peoples and other relevant stakeholders in order to promote its implementation. Some of these organizations are already engaged in such activities, which should be supported by States and the donor community at large.

46 E/2008/43-E/C.19/2008/13, para. 26.

47 United Nations Development Group, Guidelines on Indigenous Peoples’ Issues, February 2008.

A/HRC/9/9 page 24

V. CONCLUSIONS

85. The United Nations Declaration on the Rights of Indigenous Peoples represents an authoritative common understanding, at the global level, of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of international human rights law. The product of a protracted drafting process involving the demands voiced by indigenous peoples themselves, the Declaration reflects and builds upon human rights norms of general applicability, as interpreted and applied by United Nations and regional treaty bodies, as well as on the standards advanced by ILO Convention No. 169 and other relevant instruments and processes.

86. Accordingly, the Declaration does not attempt to bestow indigenous peoples with a set of special or new human rights, but rather provides a contextualized elaboration of general human rights principles and rights as they relate to the specific historical, cultural and social circumstances of indigenous peoples. The standards affirmed in the Declaration share an essentially remedial character, seeking to redress the systemic obstacles and discrimination that indigenous peoples have faced in their enjoyment of basic human rights. From this perspective, the standards of the Declaration connect to existing State obligations under other human rights instruments.

87. For the Declaration to be fully operative, States must pursue a range of affirmative, special measures that engage the various institutions of law-making and public administration. This involves a complex process of legal and institutional reform, judicial action, specific policies, and special reparations procedures. It is a process that requires States’ full political engagement and financial commitment, and which is not free from obstacles and difficulties of all sorts.

88. The United Nations system, including human rights bodies and mechanisms, specialized agencies and mechanisms with indigenous-specific mandates (the Permanent Forum, the Expert Mechanism and the Special Rapporteur), plays a central role in promoting the implementation of the Declaration at the local level. The principles and rights affirmed in the Declaration constitute or add to the normative frameworks for the activities of United Nations human rights institutions, mechanisms and specialized agencies as they relate to indigenous peoples, including with regard to development cooperation targeted for the benefit of indigenous peoples and other activities that may in some way affect indigenous interests.

89. Because implementing the Declaration depends on the establishment of strong partnerships between States and indigenous peoples, in which both must assume responsibilities, indigenous peoples invariably are crucial actors in the operationalization

A/HRC/9/9 page 25 of the Declaration. Most of the provisions of the Declaration, including the articles that elaborate on the elements of indigenous self-determination in the areas of self-government and autonomy, cultural integrity and social areas, require the active, good faith engagement of indigenous peoples with States and the broader political and societal structures.

90. Civil society actors, including the educational sector and the media, religious groups, non-governmental organizations and the private sector, further have roles in supporting the broad societal changes required to meet the challenges involved in making the United Nations Declaration a living reality.

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GE.13-15249

Human Rights Council Twenty-fourth session Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya*

Extractive industries and indigenous peoples

Summary

This is the final thematic report of James Anaya, the Special Rapporteur on the rights of indigenous peoples, submitted to the Human Rights Council in accordance with Council resolutions 6/12 and 15/14. Building upon previous reports, it addresses the human rights concerns of indigenous peoples relating to extractive industries. The Special Rapporteur seeks to further advance understanding of the content and implications of international human rights standards that are relevant to these concerns, identifying and building upon points of consensus that he has found in relation to these standards. He provides a series of observations and recommendations that draw from the experiences he has studied, and that point to new models for resource extraction that are or would be consistent with international standards and conducive to the fulfilment of indigenous peoples’ rights. The report does not address the issues and human rights standards that are particular to indigenous peoples in voluntary isolation.

* The annex to the present report is reproduced as received, in the language of submission

only.

United Nations A/HRC/24/41

General Assembly Distr.: General 1 July 2013 Original: English

A/HRC/24/41

2

Contents Paragraphs Page

I. Introduction ............................................................................................................. 1–7 3

II. A preferred model: resource extraction and development through indigenous peoples’ own initiatives and enterprises .................................. 8–17 4

A. Natural resource extraction and development by indigenous peoples as an exercise of their self-determination and related rights ........................... 9–11 5

B. State support and preference for indigenous peoples’ own initiatives and enterprises ................................................................................................ 12–17 5

III. The standard scenario: when States or third party business enterprises promote the extraction of natural resources within indigenous territories .............. 18–40 6

A. The right of indigenous peoples to oppose extractive activities ..................... 19–25 7

B. The principle of free, prior and informed consent .......................................... 26–36 8

C. Natural resource extraction in indigenous territories absent consent .............. 37–40 11

IV. Conditions for getting to and sustaining indigenous peoples’ agreement to extractive activities promoted by the State or third party business enterprises ... 41–78 12

A. Establishment of State regulatory regimes that adequately protect indigenous peoples’ rights .............................................................................. 44–46 13

B. Regulation of extraterritorial activities of companies .................................... 47–48 13

C. Participation by indigenous peoples and respect for their rights in strategic State planning for resource extraction and development ............. 49–51 14

D. Due diligence by extractive companies to respect indigenous peoples’ rights .............................................................................. 52–57 14

E. Fair and adequate consultation and negotiation procedures............................ 58–71 16

F. Rights-centred, equitable agreements and partnership .................................... 72–78 18

V. Conclusions and recommendations ......................................................................... 79–92 20

Annex

Summary of activities of the Special Rapporteur on the rights of indigenous peoples, James Anaya, 2012-2013 ....................................................................................................................... 22

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I. Introduction

1. The worldwide drive to extract and develop minerals and fossil fuels (oil, gas and coal),1 coupled with the fact that much of what remains of these natural resources is situated on the lands of indigenous peoples,2 results in increasing and ever more widespread effects on indigenous peoples’ lives. As has been amply documented in previous reports by the Special Rapporteur (see, for example, A/HRC/18/35, paras. 30-55), indigenous peoples around the world have suffered negative, even devastating, consequences from extractive industries.

2. Despite such negative experiences, looking towards the future it must not be assumed that the interests of extractive industries and indigenous peoples are entirely or always at odds with each other. In the course of his examination of situations across the globe, the Special Rapporteur has found that in many cases indigenous peoples are open to discussions about extraction of natural resources from their territories in ways beneficial to them and respectful of their rights. A number of situations have been brought to the attention of the Special Rapporteur in which indigenous peoples have agreed to industrial-scale resource extraction within their territories or have even themselves taken initiatives for mining or development of oil or gas.

3. On the other hand, there are certainly cases in which resource extraction is simply incompatible with indigenous peoples’ own aspirations and priorities for development, or may impede their access to lands and natural resources critical to their physical well-being and the integrity of their cultures and livelihoods. In recent years private companies in the extractive sector and States have become increasingly sensitive to indigenous peoples’ rights in this regard, and technological advances have allowed for a diminution of the environmental impacts of extractive activities. Nonetheless, in many places indigenous peoples remain sceptical of – and even hostile to – extractive industries, owing to negative experiences.

4. The Special Rapporteur further observes that the business model that still prevails in most places for the extraction of natural resources within indigenous territories is not one that is fully conducive to the fulfilment of indigenous peoples’ rights, particularly their self-determination, proprietary and cultural rights in relation to the affected lands and resources. As stated in the Special Rapporteur’s report to the Human Rights Council in 2012 (A/HRC/21/47, para. 74), the prevailing model of resource extraction is one in which an outside company, with backing by the State, controls and profits from the extractive operation, with the affected indigenous peoples at best being offered benefits in the form of jobs or community development projects that typically pale in economic value in comparison to profits gained by the corporation.

5. Increasing resource extraction and its mounting effects on indigenous peoples make it all the more imperative to reverse historical trends and secure indigenous peoples’ rights in this context. As a starting point there should be broad understanding among all relevant actors about the content of the internationally recognized rights of indigenous peoples, and about the principles that are to guide the actions of States and business enterprises when

1 See World Bank, “The World Bank Group in extractive industries: 2011 annual review” (2011), pp.

8-14. Available from http://siteresources.worldbank.org/INTOGMC/Resources/WBG_EI_Annual_Report_FY11_Final.pdf.

2 International Work Group for Indigenous Affairs, “Indigenous peoples, transnational corporations and other business enterprises”, briefing note (January 2012), p. 1. Available from www.iwgia.org/iwgia_files_publications_files/0566_BRIEFING_2.pdf.

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these rights are potentially affected by extractive activities. Further, new business models for natural resource extraction need to be examined and developed, models that are more conducive to the full enjoyment by indigenous peoples of their rights than the one that currently prevails in much of the world. In previous reports to the Human Rights Council the Special Rapporteur has endeavoured to shed light on the issues that indigenous peoples face in relation to extractive industries, and to contribute to understanding of the international human rights standards that apply in this context.3

6. In this his final report to the Council, the Special Rapporteur seeks to further advance understanding of relevant international standards, identifying and building upon points of consensus that he has found in relation to these standards. He provides a series of observations and recommendations that draw from the experiences he has studied and that point to new models for resource extraction that are or would be consistent with international standards and even conducive to the fulfilment of indigenous peoples’ rights.

7. In producing the present report the Special Rapporteur has benefited from extensive consultations with representatives of indigenous peoples, States, business enterprises within the extractives sector, non-governmental organizations and experts. The Special Rapporteur is grateful to all those who contributed their views and insights through his questionnaires and requests for information, and to the indigenous and other organizations and Governments that hosted consultations.4

II. A preferred model: resource extraction and development through indigenous peoples’ own initiatives and enterprises

8. In contrast to the prevailing model in which natural resource extraction within indigenous territories is under the control of and primarily for the benefit of others, indigenous peoples in some cases are establishing and implementing their own enterprises to extract and develop natural resources. This alternative of indigenous-controlled resource extraction, by its very nature, is more conducive to the exercise of indigenous peoples’ rights to self-determination, lands and resources, culturally appropriate development and related rights, in accordance with the United Nations Declaration on the Rights of Indigenous Peoples5 and other international sources of authority.6

3 See A/HRC/18/35, paras. 22-89, and A/HRC/21/47, paras. 34-76 and 79-87. 4 The Special Rapporteur would like to thank in particular, for their assistance in organizing relevant

consultations, the National Congress of Australia’s First Peoples, the Asia Indigenous Peoples Pact, the Saami Council, the Lowell Institute for Mineral Resources at the University of Arizona, the Barents Euro-Arctic Council, Peace Brigades International, Amnesty International, Indigenous Peoples Links, Almáciga, the International Council on Mining and Metals, the Harvard Project on American Indian Economic Development, Middlesex University School of Law, the Sustainable Development Strategy Group and RESOLVE; as well as the Governments of Norway, Spain and the United Kingdom of Great Britain and Northern Ireland, and the state of Western Australia (Australia). He would also like to thank the Cyrus R. Vance Center for International Justice, the University of Virginia International Human Rights Law Clinic, and the Indigenous Peoples Law and Policy Program at the University of Arizona for their assistance with background research used in the preparation for this report.

5 Inter alia, arts. 3, 5, 26 and 32. 6 See, inter alia, International Labour Organization (ILO) Convention No. 169 (1989) concerning

Indigenous and Tribal Peoples in Independent Countries, arts. 13-15; International Covenant on Civil and Political Rights, arts. 1 and 27; and International Convention on the Elimination of All Forms of Racial Discrimination, art. 5 (d) (v).

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A. Natural resource extraction and development by indigenous peoples as an exercise of their self-determination and related rights

9. As part of their right to self-determination, “indigenous peoples have the right to determine priorities and strategies for the development or use of their lands and territories”.7 This right necessarily implies a right of indigenous peoples to pursue their own initiatives for resource extraction within their territories if they so choose. In cases in which indigenous peoples retain ownership of all the resources, including mineral and other subsurface resources, within their lands, ownership of the resources naturally includes the right to extract and develop them. But even where the State claims ownership of subsurface or other resources under domestic law, indigenous peoples have the right to pursue their own initiatives for extraction and development of natural resources within their territories, at least under the terms generally permitted by the State for others.

10. The Special Rapporteur notes that the model by which indigenous peoples themselves initiate and control resource extraction in their own territories in accordance with their own development priorities has been gaining ground in a number of countries where indigenous peoples have developed the relevant business and technical capacity. There are several notable cases in North America, for example, in which indigenous nations or tribes own and operate companies that engage in oil and gas production, manage electric power assets, or invest in alternative energy. In many such cases they have partnered with non-indigenous companies to develop extractive enterprises in which they have or eventually gain majority ownership interests.

11. To be sure, even resource extraction by indigenous peoples’ own enterprises may pose certain risks to the enjoyment of human rights of the members of indigenous communities, particularly in relation to the natural environment. Experience shows, however, that those risks may be minimized, and the enjoyment of self-determination and related rights enhanced, when indigenous peoples freely choose to develop their own resource extraction enterprises backed by adequate capacity and internal governance institutions.

B. State support and preference for indigenous peoples’ own initiatives and enterprises

12. In compliance with their obligation to promote and fulfil the rights of indigenous peoples, States should have programmes to assist indigenous peoples to develop the capacity and means to pursue, if they so choose, their own initiatives for natural resource management and development, including extraction. States have the obligation not only to respect human rights by refraining from conduct that would violate such rights, but also to affirmatively protect, promote and fulfil human rights.8 This principle of international human rights law applies no less to the specific rights of indigenous peoples that are derived from broadly applicable human rights standards.

13. The mounting of enterprises for the extraction, development and marketing of natural resources depends on a range of business and technical skills. Additionally, projects for resource extraction are normally associated with substantial start-up investments, and they commonly generate profits only after several years. It is evident that the vast majority

7 United Nations Declaration on the Rights of Indigenous Peoples, art. 32, para. 1. 8 This obligation is grounded for all Member States in the Charter of the United Nations, articles 1, 2

and 56, among others, and is a general principle of international law; it applies in respect of those human rights found in treaties to which States subscribe and in other sources of international law.

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of indigenous peoples across the globe do not now have the capacity or financial means to develop their own resource extraction enterprises, or to build strategic partnerships with non-indigenous companies that would help develop their control over extractive enterprises. A long-term view should be taken to assist indigenous peoples who might want to go down this path as one of the alternatives that may be available to them, in contrast to the alternative of seeing the natural resources within their territories being extracted under the control of others. Indigenous peoples should not be viewed as being frozen at a certain stage of development or capacity, but rather should be supported in ways that enable them to develop and build capacity in accordance with their own designs and aspirations.

14. The Special Rapporteur is aware that in several countries State-sponsored programmes exist to assist indigenous peoples to manage natural resources or develop their own income generating enterprises, as part of broader programmes for development assistance. These programmes provide various kinds of support, such as grants, loans, favourable tax treatment, advisory services, skills training and scholarships. Where these programmes exist they should be strengthened and specifically targeted to support capacity-building and to provide financial assistance for indigenous peoples’ own initiatives for natural resource management and extraction. In those countries where they do not exist, such support programmes should be introduced and likewise developed by the State. International, regional and national donor and development agencies should also support indigenous peoples’ own resource extraction and development initiatives.

15. State support for indigenous peoples, furthermore, should include providing assistance for acquiring any necessary licenses or permits. Also, in granting any licenses or permits, States should give preference to indigenous peoples’ initiatives for resource extraction within their territories over any initiatives by third party business interests to pursue resource extraction within those same lands.

16. The justification for this preference is in the fact and nature of the indigenous presence. Characteristically, indigenous peoples have strong cultural attachments to the territories they inhabit, and their presence in those territories predates that of others. They have been stewards of the lands and resources within their territories for generations past, and have sought to safeguard the lands and resources for future generations. Very often indigenous peoples lay claim to all the resources, including subsurface resources, within their territories, under their own customs or laws, notwithstanding the laws of the State, and very often, those claims have not been adequately resolved. Given these factors, recognizing a priority for indigenous peoples for the extraction of resources within their territories is a matter of equity if not of entitlement.

17. Giving preference to indigenous peoples’ initiatives for resource extraction within their territories is, moreover, a matter of good practice. Resource extraction carried out by indigenous peoples themselves maximizes the possibility of such extraction being pursued in manners respectful of the rights and interests of indigenous peoples. When indigenous peoples themselves control resource extraction, many of the challenges and elements of instability inherent in extractive activities by State or third party enterprises are necessarily diminished or altogether avoided. In addition, profits that the resource extraction project generates are more likely to stay within the State, and capacity enhancement benefits local people.

III. The standard scenario: when States or third party business enterprises promote the extraction of natural resources within indigenous territories

18. Just as indigenous peoples have the right to pursue their own initiatives for resource extraction, as part of their right to self-determination and to set their own strategies for

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development, they have the right to decline to pursue such initiatives, as many do and no doubt will continue to do. Today, however, much more often than being faced with the choice of whether or not to pursue their own resource extraction initiatives, indigenous peoples face resource extraction projects that are advanced by the State and third party business enterprises, typically when the State claims ownership of the resources. Although in an increasing number of cases indigenous peoples are accepting such initiatives, it appears that in many more places around the world they are resisting them.

A. The right of indigenous peoples to oppose extractive activities

19. The rights to freedom of expression and to participation are firmly established in international human rights law.9 By virtue of these rights, indigenous individuals and peoples have the right to oppose and actively express opposition to extractive projects, both in the context of State decision-making about the projects and otherwise, including by organizing and engaging in peaceful acts of protest. States are bound to respect and protect rights of freedom of expression and participation, and may impose limitations on the exercise of those rights only within narrow bounds and for reasons of public order.10

1. Freedom from reprisals and violence

20. Many cases have come to the attention of the Special Rapporteur in which indigenous individuals or communities have suffered repression for their opposition to extractive projects. In several of the cases, indigenous individuals and groups opposing extractive projects have been met with acts of intimidation or violence, including violence resulting in death.

21. It is imperative that States adopt the measures necessary to secure the right of indigenous peoples and individuals to peacefully express opposition to extractive projects, as well as to express themselves on other matters, free from any acts of intimidation or violence, or from any form of reprisals. States should provide adequate training to security forces, hold responsible those who commit or threaten acts of violence, and take measures to prevent both State and private agents from engaging in the unjustifiable or excessive use of force.11 Additionally, criminal prosecution of indigenous individuals for acts of protest should not be employed as a method of suppressing indigenous expression and should proceed only in cases of clear evidence of genuine criminal acts. Instead, the focus should be on providing indigenous peoples with the means of having their concerns heard and addressed by relevant State authorities.

22. For their part, extractive companies should adopt policies and practices to ensure that security personnel employed by them act in accordance with relevant human rights standards and with sensitivity to indigenous cultural and social patterns. The Special Rapporteur emphasizes the responsibility of companies to respect human rights, in accordance with the Guiding Principles on Business and Human Rights, which were endorsed by the Human Rights Council in 2011, and that this responsibility is independent of whatever requirements the State may or may not impose on companies and their agents.

23. The Special Rapporteur takes note of the Voluntary Principles on Security and Human Rights, which are being promoted through a process involving a group of Governments, non-governmental organizations and companies in the extractive and energy

9 See, for example, International Covenant on Civil and Political Rights, arts. 19, 22 and 25. 10 See ibid., art. 19, para. 3. 11 See the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990).

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sectors, including some of the world’s major mining and oil and gas companies. The Voluntary Principles employ a human rights framework to address company relations with State and private security providers. This multi-stakeholder process is to be encouraged, although the Special Rapporteur considers that adherence to principles should not be considered voluntary. All extractive companies and relevant State authorities should become aware of and adhere to the Voluntary Principles along with all applicable human rights standards.

2. Freedom from undue pressures to accept extractive projects or engage in consultations

24. Apart from concerns over abusive use of force or direct reprisals, indigenous peoples should be free from pressure from State or extractive company agents to compel them to accept extractive projects. To this end, basic services for which the State is responsible, including for education, health and infrastructure, should not be conditioned upon acceptance of extractive projects. Furthermore, States and companies should guard against acts of manipulation or intimidation of indigenous leaders by State or company agents.

25. Finally, States should not insist, or allow companies to insist, that indigenous peoples engage in consultations about proposed extractive projects to which they have clearly expressed opposition. As is now well understood, States have the obligation to consult with indigenous peoples about decisions that affect them, including decisions about extractive projects. In complying with this obligation States are required to make available to indigenous peoples adequate consultation procedures that comply with international standards and to reasonably encourage indigenous peoples to engage in the procedures. (See paras. 58-71 below). In the view of the Special Rapporteur, however, when States make such efforts to consult about projects and, for their part, the indigenous peoples concerned unambiguously oppose the proposed projects and decline to engage in consultations, as has happened in several countries, the States’ obligation to consult is discharged. In such cases, neither States nor companies need or should insist on consultations, while, at the same time, they must understand that the situation is one in which indigenous peoples have affirmatively withheld their consent. The question then becomes what consequences for decisions about the project follow from the indigenous opposition and withholding of consent.

B. The principle of free, prior and informed consent

26. Beyond being protected expression, indigenous peoples’ opposition to extractive projects can have determinative consequences, in the light of the principle of free, prior and informed consent, a principal that is articulated in several provisions of the United Nations Declaration on the Rights of Indigenous Peoples and that is gaining increasing acceptance in practice.12

12 The Special Rapporteur has already devoted considerable attention to examining the contours of this

principle and its relation to the duty of States to consult with indigenous peoples on decisions affecting them. See, for example, A/HRC/12/34, paras. 36-57; and A/HRC/21/47, paras. 47-53 and 62-71.

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1. The general rule: consent is required for extractive projects within indigenous territories

27. The Declaration and various other international sources of authority,13 along with practical considerations, lead to a general rule that extractive activities should not take place within the territories of indigenous peoples without their free, prior and informed consent. Indigenous peoples’ territories include lands that are in some form titled or reserved to them by the State, lands that they traditionally own or possess under customary tenure (whether officially titled or not), or other areas that are of cultural or religious significance to them or in which they traditionally have access to resources that are important to their physical well-being or cultural practices. Indigenous consent may also be required when extractive activities otherwise affect indigenous peoples, depending upon the nature of and potential impacts of the activities on the exercise of their rights. In all instances of proposed extractive projects that might affect indigenous peoples, consultations with them should take place and consent should at least be sought, even if consent is not strictly required.14

28. The general rule identified here derives from the character of free, prior and informed consent as a safeguard for the internationally recognized rights of indigenous peoples that are typically affected by extractive activities that occur within their territories. As explained previously by the Special Rapporteur (A/HRC/21/47, paras. 47-53), together, principles of consultation and consent function as instrumental to rights of participation and self-determination, and as safeguards for all those rights of indigenous peoples that may be affected by external actors, including rights that indigenous peoples have under domestic law or treaties to which they have subscribed, or rights recognized and protected by authoritative international sources like the United Nations Declaration on the Rights of Indigenous Peoples and various widely ratified multilateral treaties. These rights include, in addition to rights of participation and self-determination, rights to property, culture, religion and non-discrimination in relation to lands, territories and natural resources, including sacred places and objects; rights to health and physical well-being in relation to a clean and healthy environment; and the right of indigenous peoples to set and pursue their own priorities for development, including with regard to natural resources (See A/HRC/21/47, para. 50 and cited sources.) It can readily be seen that, given the invasive nature of industrial-scale extraction of natural resources, the enjoyment of these rights is invariably affected in one way or another when extractive activities occur within indigenous territories – thus the general rule that indigenous consent is required for extractive activities within indigenous territories.

29. This general rule is reinforced by practical considerations. It is increasingly understood that when proposed extractive projects might affect indigenous peoples or their territories, it is simply good practice for the States or companies that promote the projects to acquire the consent or agreement of the indigenous peoples concerned. Such consent or agreement provides needed social license and lays the groundwork for the operators of

13 See, for example, United Nations Declaration on the Rights of Indigenous People, art. 32, para. 2;

Inter-American Court of Human Rights, Saramaka People v. Suriname, judgement of 28 November 2007, paras. 129-137 (interpreting the American Convention on Human Rights); Human Rights Committee, communication No. 1457/2006, Poma v. Peru, Views adopted on 27 March 2009, paras. 7.5, 7.7 (interpreting the International Covenant on Civil and Political Rights); Committee on the Elimination of Racial Discrimination, general recommendation No. 23 (1997) on indigenous peoples (interpreting the International Convention on the Elimination of All Forms of Racial Discrimination); Committee on Economic, Social and Cultural Rights, E/C.12/1/Add.74, para. 12 (interpreting the International Covenant on Economic, Social and Cultural Rights).

14 See the Declaration, art. 19; ILO Convention No. 169, art. 6, para. 2.

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extractive projects to have positive relations with those most immediately affected by the projects, lending needed stability to the projects.

30. Whereas the withholding of consent may block extractive projects promoted by companies or States, the granting of consent can open the door to such projects. But it must be emphasized that the consent is not a free-standing device of legitimation. The principle of free, prior and informed consent, arising as it does within a human rights framework, does not contemplate consent as simply a yes to a predetermined decision, or as a means to validate a deal that disadvantages affected indigenous peoples. When consent is given, not just freely and on an informed basis, but also on just terms that are protective of indigenous peoples rights, it will fulfil its human rights safeguard role.

2. The narrow scope of permissible exceptions to the general rule

31. The general requirement of indigenous consent for extractive activities within indigenous territories may be subject to certain exceptions, but only within narrowly defined parameters. First, consent may not be required for extractive activities within indigenous territories in cases in which it can be conclusively established that the activities will not substantially affect indigenous peoples in the exercise of any of their substantive rights in relation to the lands and resources within their territories15 – perhaps mostly a theoretical possibility given the invasive nature of extractive activities, especially when indigenous peoples are living in close proximity to the area where the activities are being carried out. More plausibly, consent may not be required when it can be established that the extractive activity would only impose such limitations on indigenous peoples’ substantive rights as are permissible within certain narrow bounds established by international human rights law.

32. Within established doctrine of international human rights law, and in accordance with explicit provisions of international human rights treaties, States may impose limitations on the exercise of certain human rights, such as the rights to property and to freedom of religion and expression. In order to be valid, however, the limitations must comply with certain standards of necessity and proportionality with regard to a valid public purpose, defined within an overall framework of respect for human rights. The United Nations Declaration on the Rights of Indigenous Peoples, in its article 46, paragraph 2, identifies the parameters of permissible limitations of the rights therein recognized with the following minimum standard:

The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.

33. It will be recalled that consent performs a safeguard role for indigenous peoples’ fundamental rights. When indigenous peoples freely give consent to extractive projects under terms that are aimed to be protective of their rights, there can be a presumption that any limitation on the exercise of rights is permissible and that rights are not being infringed.16 On the other hand, when indigenous peoples withhold their consent to extractive projects within their territories, no such presumption applies, and in order for a

15 See Poma, para. 7.6. (consultation and consent required for “measures which substantially

compromise or interfere with the culturally significant economic activities of a minority or indigenous community”).

16 See Saramaka People (footnote 13 above), paras. 127-134.

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project to be implemented the State has the burden of demonstrating either that no rights are being limited or that, if they are, the limitation is valid.

34. In order for a limitation to be valid, first, the right involved must be one subject to limitation by the State and, second, as indicated by the Declaration, the limitation must be necessary and proportional in relation to a valid State objective motivated by concern for the human rights of others. The Inter-American Court of Human Rights has pointed out that indigenous peoples’ proprietary interests in lands and resources, while being protected the American Convention on Human Rights, are subject to limitations by the State, but only those limitations that meet criteria of necessity and proportionality in relation to a valid objective.17

35. The Special Rapporteur observes that in a number of cases States have asserted the power to expropriate indigenous property interests in land or surface resources in order to have or permit access to the subsurface resources to which the State claims ownership. Such an expropriation being a limitation of indigenous property rights, even if just compensation is provided, a threshold question in such cases is whether the limitation is pursuant to a valid public purpose. The Special Rapporteur cautions that such a valid public purpose is not found in mere commercial interests or revenue-raising objectives, and certainly not when benefits from the extractive activities are primarily for private gain. It should be recalled that under various sources of international law, indigenous peoples have property, cultural and other rights in relation to their traditional territories, even if those rights are not held under a title deed or other form of official recognition.18 Limitations of all those rights of indigenous peoples must, at a minimum, be backed by a valid public purpose within a human rights framework, just as with limitations on rights formally recognized by the State.

36. Even if a valid public purpose can be established for the limitation of property or other rights related to indigenous territories, the limitation must be necessary and proportional to that purpose. This requirement will generally be difficult to meet for extractive industries that are carried out within the territories of indigenous peoples without their consent. In determining necessity and proportionality, due account must be taken of the significance to the survival of indigenous peoples of the range of rights potentially affected by the project. Account should also be taken of the fact that in many if not the vast majority of cases, indigenous peoples continue to claim rights to subsurface resources within their territories on the basis of their own laws or customs, despite State law to the contrary. These factors weigh heavily against a finding of proportionality of State-imposed rights limitations, reinforcing the general rule of indigenous consent to extractive activities within indigenous territories.

C. Natural resource extraction in indigenous territories absent consent

37. Whether or not indigenous consent is a strict requirement in particular cases, States should ensure good faith consultations with indigenous peoples about extractive activities that would affect them, and engage in efforts to reach agreement or consent, as required by the United Nations Declaration on the Rights of Indigenous Peoples (arts. 19 and 32, para. 2), ILO Convention No. 169 (art. 6, para. 2) and other sources.

38. When a State determines that it is permissible to proceed with an extractive project that affects indigenous peoples without their consent, and chooses to do so, it remains

17 Ibid., para. 127. 18 See, for example, Inter-American Court of Human Rights, Sawhoyamaxa Indigenous Community v.

Paraguay, judgement of 29 March 2006, para. 128 (traditional possession by indigenous people of their lands has the equivalent effect of full title granted by the State).

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bound to respect and protect the rights of indigenous peoples and must ensure that other applicable safeguards are implemented, in particular steps to minimize or offset the limitation on the rights through impact assessments, measures of mitigation, compensation and benefit sharing. States should ensure good faith efforts to consult with indigenous peoples and to develop and reach agreement on these measures, in keeping with its general duty to consult. The adequacy of these measures and the consultations about them will also be factors in the calculus of proportionality in regard to any limitations on rights.

39. Any decision by the State to proceed with or permit an extractive project without the consent of indigenous peoples affected by the project should be subject to review by an impartial judicial authority. Judicial review should ensure compliance with the applicable international standards regarding the rights of indigenous peoples and provide for an independent determination of whether or not the State has met its burden of justifying any limitations on rights.

40. For their part, in keeping with their independent responsibility to respect human rights, companies should conduct due diligence before proceeding, or committing themselves to proceed, with extractive operations without the prior consent of the indigenous peoples concerned and conduct their own independent assessment of whether or not the operations, in the absence of indigenous consent, would be in compliance with international standards, and under what conditions. If they would not be in compliance, the extractive operations should not be implemented, regardless of any authorization by the State to do so.

IV. Conditions for getting to and sustaining indigenous peoples’ agreement to extractive activities promoted by the State or third party business enterprises

41. As noted at the beginning of the present report, in most of the cases of extractive industries within or near indigenous territories that have been brought to the Special Rapporteur’s attention, the indigenous peoples concerned have opposed the extractive project, owing to the negative or perceived negative impacts and the absence of adequate consultation or consent. The Special Rapporteur has learned of several other cases, however, in which indigenous peoples have entered into agreements with States or third party business enterprises for the extraction of resources within their territories. Evaluation of both the good and bad practices related to these cases of both indigenous opposition and agreement, in the light of the relevant international standards, contributes to understanding the conditions for arriving at and sustaining indigenous peoples’ agreement to extractive activities promoted by the State or third party business enterprises – that is, for obtaining the free, prior and informed consent of indigenous peoples on just and equitable terms.

42. In chapter II of the present report, the Special Rapporteur indicated that, if extractive activities are to take place within indigenous peoples’ territories, the activities are best carried out under the control of the indigenous peoples concerned through their own initiatives and enterprises, in contrast to the prevailing model of natural resource extraction initiated by and under the control of outside interests. The world in which we live, however, is one in which for the foreseeable future the financial and technical capacity for the extraction of natural resources will largely be in non-indigenous hands and the political forces will continue to empower the existing system of industry actors. Within this reality, it is necessary to identify, if possible, the conditions for resource extraction on indigenous territories by States or third party business enterprises that are fully respectful of indigenous peoples’ rights.

43. While not exhaustive of all relevant considerations, the following discussion identifies key conditions that could lay the groundwork for developing and sustaining

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agreements with indigenous peoples. These conditions point to models of partnership with indigenous peoples that are respectful of their rights.

A. Establishment of State regulatory regimes that adequately protect indigenous peoples’ rights

44. As stressed above, States are obligated not just to respect, but also to protect, promote and fulfil human rights, and this obligation applies with respect to the rights of indigenous peoples (para. 12). In the context of extractive industries, the State’s obligation to protect human rights necessarily entails ensuring a regulatory framework that fully recognizes indigenous peoples’ rights over lands and natural resources and other rights that may be affected by extractive operations; that mandates respect for those rights both in all relevant State administrative decision-making and in the behaviour of extractive companies; and that provides effective sanctions and remedies when those rights are infringed either by government or corporate actors. Such a regulatory framework requires legislation or regulations that incorporate international standards of indigenous rights and that operationalize them through the various components of State administration that govern land tenure, mining, oil and gas, and other natural resource extraction or development.

45. In examining relevant State laws and regulations across the globe, the Special Rapporteur has found deficient regulatory frameworks, such that in many respects indigenous peoples’ rights remain inadequately protected, and in all too many cases entirely unprotected, in the face of extractive industries. Experience shows that, with such regulatory deficiencies, extractive operations in proximity to indigenous peoples are likely to put at risk or infringe their rights and contribute to persistently conflictive social environments.

46. Legislative and administrative reforms are needed in virtually all countries in which indigenous peoples live, in order to adequately define and protect their rights over lands and resources, including rights over lands not exclusively under their use or possession, such as rights related to subsistence practices or to areas of cultural or religious significance, which may be affected by extractive industries. Additionally, new or strengthened regulatory mechanisms are needed to provide for consultations with indigenous peoples over extractive projects and to ensure that such consultations are in compliance with international standards, including the principle of free, prior and informed consent.

B. Regulation of extraterritorial activities of companies

47. The Special Rapporteur has observed that in many cases in which extractive companies have been identified as responsible for, or at least associated with, violations of the rights of indigenous peoples, those violations occur in countries with weak regulatory regimes, and the responsible companies are domiciled in other, typically much more developed, countries. Even if States are not obligated under international law to regulate the extraterritorial activities of companies domiciled in their territory in order to compel or promote conformity with human rights standards, strong policy reasons exist for them to do so, as affirmed by the Guiding Principles on Business and Human Rights.19 These reasons include, in addition to preserving the States’ own reputation, the simple morality of exercising the State regulatory power to advance human rights and reduce human turmoil whenever possible.

19 Principle 2, commentary.

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48. States should therefore adopt regulatory measures for companies domiciled in their respective jurisdictions that are aimed at preventing and, in appropriate circumstances, sanctioning and remedying violations of the rights of indigenous peoples abroad for which those companies are responsible or in which they are complicit. The Special Rapporteur observes that some States have adopted regulatory measures with extraterritorial reach in this vein to address human rights concerns within certain contexts, but with limited applicability for the specific concerns of indigenous peoples. Regulation of the extraterritorial activities of companies to promote their compliance with international standards concerning the rights of indigenous peoples will help establish a transnational corporate culture of respect for those rights and greater possibilities of healthy relationships between extractive companies and indigenous peoples.

C. Participation by indigenous peoples and respect for their rights in strategic State planning for resource extraction and development

49. States typically regard mineral, oil and gas, and other natural resources to be strategic assets and, accordingly, in regulating the industries many engage in long- and short-term planning for the development of the resources, including resources within or near indigenous territories. Such strategic State planning influences the definition of laws, shapes regulatory controls, and determines the policies pertinent to resource extraction. It also establishes the basis for the decisions about the development and implementation of resource extraction projects. With these characteristics, strategic planning for resource development can have profound, even if not so immediate, effects on indigenous peoples and the enjoyment of their rights. The Special Rapporteur is concerned that, of the many cases of State resource development planning he has studied, he has found but a few notable instances in which indigenous peoples have been included and their specific rights addressed in the planning process.

50. Instead, by and large, the Special Rapporteur has found patterns of State planning for resource extraction that can be seen, in a number of ways, to set in motion decisions that prejudice indigenous peoples’ ability to set their own priorities for the development of their lands and territories. Some planning regimes adhere to competitive bidding or other permitting schemes that allow for the distribution of licenses for resource exploration or other extractive activities in advance of any consultations with affected indigenous peoples. Furthermore, State planning typically reinforces existing industry practices in a way that is not conducive to alternative models, advocated in the present report, under which indigenous peoples have the opportunity to exercise greater control over resource extraction activities within their territories.

51. Patterns of State planning that marginalize indigenous peoples and their rights must be reversed, so that indigenous peoples may participate in strategic planning processes through appropriate representative arrangements, as has been done at least to some extent by a number of States or their political subdivisions. Indigenous participation in strategic planning for resource extraction will undoubtedly lend itself to greater possibilities of agreement with indigenous peoples on specific projects.

D. Due diligence by extractive companies to respect indigenous peoples’ rights

52. Although States are ultimately responsible for ensuring respect for human rights, including the rights of indigenous peoples, today a number of regulatory and self-regulatory frameworks governing corporate responsibility reflect widespread understanding of the roles business enterprises may play in both the infringement and fulfilment of human rights

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in various contexts. Accordingly, the Guiding Principles on Business and Human Rights specify that business enterprises have a responsibility to respect internationally recognized human rights and that this responsibility is independent of State obligations. As explained previously by the Special Rapporteur (A/HRC/21/47, paras. 55-56), this responsibility to respect human rights extends to compliance with international standards concerning the rights of indigenous peoples, in particular those set forth in the United Nations Declaration on the Rights of Indigenous Peoples, no less than it applies to compliance with other international human rights standards.

53. Given their independent responsibility to respect human rights, business enterprises, including extractive companies, should not assume that compliance with State law equals compliance with the international standards of indigenous rights. On the contrary, companies should perform due diligence to ensure that their actions will not violate or be complicit in violating indigenous peoples’ rights, identifying and assessing any actual or potential adverse human rights impacts of a resource extraction project.

54. Such due diligence entails identifying with particularity, at the very earliest stages of planning for an extractive project, the specific indigenous groups that may be affected by the project, their rights in and around the project area and the potential impacts on those rights. This due diligence should be performed preliminarily at the very earliest stages of determining the feasibility of the project, in advance of a more complete project impact assessment in later stages of planning or decision-making about the project. Additionally, extractive companies should employ due diligence to avoid acquiring tainted assets, such as permits previously acquired by other business enterprises in connection with prospecting for or extracting resources in violation of indigenous peoples’ rights.

55. Due diligence also entails ensuring that the company is not contributing to or benefiting from any failure on the part of the State to meet its international obligations towards indigenous peoples. Thus, for example, extractive companies should avoid accepting permits or concessions from States when prior consultation and consent requirements have not been met, as stated above (para. 40).

56. Consistency and effectiveness of due diligence practices and respect for the rights of indigenous peoples requires that companies adopt formal policies to that end. A company’s policy should outline how the company intends to operationalize the policy at all levels of decision-making, and how it will perform due diligence and act at the operational level to avoid violating or being complicit in violations of indigenous peoples’ human rights.20 The policy should also prescribe practices for engagement with indigenous peoples that is respectful of their rights.

57. The Special Rapporteur notes that a number of extractive companies, understanding the practical advantages of respect for the rights of indigenous peoples and related due diligence, have adopted company policies along the lines suggested, and that certain industry associations have promoted such policies. Although the indicated trend in corporate policymaking is encouraging, most corporate policies still fall short of adequately providing for compliance with international standards of indigenous rights. Moreover, notwithstanding the growing awareness among companies that they not only should respect indigenous peoples’ rights, but may indeed benefit from doing so, the Special Rapporteur remains concerned that many corporations still do not commit to more than complying with national law and fail to independently conduct the relevant human rights due diligence. There is an urgent need for greater corporate awareness and resolve to embrace and implement policies and practices to ensure respect for the rights of indigenous peoples.

20 See the 2011 report of the Special Rapporteur submitted to the General Assembly (A/66/288), para. 96.

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E. Fair and adequate consultation and negotiation procedures

58. In affirming the general rule of consent for extractive activities within indigenous territories, the United Nations Declaration on the Rights of Indigenous Peoples emphasizes that, in order to obtain consent, “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representatives” (art. 32, para. 2). The Declaration thus emphasizes that good faith consultations and cooperation are a precondition for agreements with indigenous peoples concerning extractive activities. As stated above (para. 25), indigenous peoples may decline to enter consultations about extractive industries, just as they may choose to withhold consent to them. But if consent or agreement on extractive activities is to happen, it must be on the basis of adequate, good faith consultations or negotiations.

59. Consultation procedures regarding proposed extractive operations are channels through which indigenous peoples can actively contribute to the prior assessment of all potential impacts of the proposed activity, including the extent to which their substantive rights and interests may be affected. Additionally, consultation procedures are key to the search for less harmful alternatives or in the definition of mitigation measures. Consultations should also be mechanisms by which indigenous peoples can reach agreements that are in keeping with their own priorities and strategies for development, bring them tangible benefits and, moreover, advance the enjoyment of their human rights.

60. While the Special Rapporteur has addressed the elements of good faith consultations in previous reports (see, in particular, A/HRC/12/34, paras. 46-49), he would like to emphasize a few points related to problematic aspects of consultations that he has observed with regard to extractive industries.

1. Negotiations directly between extractive companies and indigenous peoples

61. The Special Rapporteur has observed that in many instances companies negotiate directly with indigenous peoples about proposed extractive activities that may affect them, with States in effect delegating to companies the execution of the State’s duty to consult with indigenous peoples prior to authorizing the extractive activities. By virtue of their right to self-determination, indigenous peoples are free to enter into negotiations directly with companies if they so wish. Indeed, direct negotiations between companies and indigenous peoples may be the most efficient and desirable way of arriving at agreed-upon arrangements for extraction of natural resources within indigenous territories that are fully respectful of indigenous peoples’ rights, and they may provide indigenous peoples opportunities to pursue their own development priorities.

62. In accordance with the responsibility of business enterprises to respect human rights, direct negotiations between companies and indigenous peoples must meet essentially the same international standards governing State consultations with indigenous peoples, including – but not limited to – those having to do with timing, information gathering and sharing about impacts and potential benefits, and indigenous participation. Further, while companies must themselves exercise due diligence to ensure such compliance, the State remains ultimately responsible for any inadequacy in the consultation or negotiation procedures and therefore should employ measures to oversee and evaluate the procedures and their outcomes, and especially to mitigate against power imbalances between the companies and the indigenous peoples with which they negotiate.

2. Mitigation of power imbalances

63. Almost invariably, when State agencies or business enterprises that promote extractive projects enter into consultations or negotiations with indigenous peoples, there are significant imbalances of power, owing to usually wide gaps in technical and financial

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capacity, access to information and political influence. The Special Rapporteur regrets to observe that, overall, there seems to be little systematic attention by States or industry actors to address these power imbalances. He believes that, as a precondition to reaching sustainable and just agreements with indigenous peoples over the taking of resources from their territories, the imbalances of power must be identified as a matter of course and deliberate steps should be taken to address them.

64. The protective role of States is especially important in this context, while companies should exercise due diligence and develop policies and practices to ensure that they do not unfairly benefit from such power imbalances. Practical measures to address power imbalances could include, inter alia, employing independent facilitators for consultations or negotiations, establishing funding mechanisms that would allow indigenous peoples to have access to independent technical assistance and advice, and developing standardized procedures for the flow of information to indigenous peoples regarding both the risks and potential benefits of extractive projects.

3. Information gathering and sharing

65. As is now generally understood, environmental and human rights impact assessments are important preconditions for the implementation of extractive operations. Indigenous peoples should have full access to the information gathered in impact assessments that are done by State agencies or extractive companies, and they should have the opportunity to participate in the impact assessments in the course of consultations or otherwise. States should ensure the objectivity of impact assessments, either by subjecting them to independent review or by requiring that the assessments are performed free from the control of the promoters of the extractive projects.

66. Indigenous peoples should also have full access to information about the technical and financial viability of proposed projects, and about potential financial benefits. The Special Rapporteur understands that companies usually consider much of this information to be proprietary and thus are reluctant to divulge it. He recommends, nonetheless, that information that otherwise might be considered proprietary be shared with the indigenous peoples concerned, as a necessary measure to mitigate power imbalances and build confidence on the part of indigenous peoples in the negotiations over projects, and because of equitable considerations relating to indigenous peoples’ historical disadvantages and connections to project areas. Such sharing of proprietary information could be done on a confidential basis.

4. Timing

67. In accordance with the principle of free, prior and informed consent, consultations and agreement with indigenous peoples over an extractive project should happen before the State authorizes or a company undertakes, or commits to undertake, any activity related to the project within an indigenous territory, including within areas of both exclusive and non-exclusive indigenous use. As a practical matter, consultation and consent may have to occur at the various stages of an extractive project, from exploration to production to project closure.

68. The Special Rapporteur has observed that, in many cases, exploration activities for eventual extraction take place within indigenous territories, with companies and States taking the position that consultations are not required for the exploration phase and that consent need not be obtained, if at all, until a license for resource extraction is given. This position, in the view of the Special Rapporteur, is simply not compatible with the principle of free, prior and informed consent or with respect for the property, cultural and other rights of indigenous peoples, given the actual or potential effects on those rights when extractive activities occur. Experience shows that exploration and other activities without prior

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consultations or consent will often serve to breed distrust on the part of indigenous peoples, making any eventual agreement difficult to achieve.

69. Also in terms of time, consultations should not be bound to temporal constraints imposed by the State, as is done under some regulatory regimes. In order for indigenous peoples to be able to freely enter into agreements, on an informed basis, about activities that could have profound effects on their lives, they should not feel pressured by time demands of others, and their own temporal rhythms should be respected.

5. Indigenous participation through representative institutions

70. A defining characteristic of indigenous peoples is the existence of their own institutions of representation and decision-making, and it must be understood that this feature makes consultations with indigenous peoples very different from consultations with the general public or from ordinary processes of State or corporate community engagement. The Special Rapporteur notes cases in which companies and States have bypassed indigenous peoples’ own leadership and decision-making structures out of misguided attempts to ensure broad community support. Where indigenous peoples are concerned, however, international standards require engagement with them through the representatives determined by them and with due regard for their own decision-making processes. Doing so is the best way of ensuring broad community support. Indigenous peoples should be encouraged to include appropriate gender balance within their representative and decision-making institutions. However, such gender balance should not be dictated or imposed upon indigenous peoples by States or companies, anymore than indigenous peoples should impose gender balance on them.

71. It may be that in some circumstances ambiguity exists about which indigenous representatives are to be engaged, in the light of the multiple spheres of indigenous community and organization that may be affected by particular extractive projects, and also that in some instances indigenous representative institutions may be weakened by historical factors. In such cases indigenous peoples should be given the opportunity and time, with appropriate support from the State if they so desire it, to organize themselves to define the representative institutions by which they will engage in consultations over extractive projects.

F. Rights-centered, equitable agreements and partnership

72. As stated above (para. 30), the principle of free, prior and informed consent does not fulfil its role as protective of and instrumental to indigenous peoples’ rights unless consent, when it is given, is given on just and equitable terms. Accordingly, there is growing awareness that agreements with indigenous peoples allowing for extractive projects within their territories must be crafted on the basis of full respect for their rights in relation to the affected lands and resources, and provide for equitable distribution of the benefits of the projects within a framework of genuine partnership.

1. Impact mitigation

73. Measures to safeguard against or to mitigate environmental and other impacts that could adversely affect the rights of indigenous peoples in relation to their territories are an essential component of any agreement for extractive activities within the territories of indigenous peoples. Experience shows that special attention is required for potential impacts on health conditions, subsistence activities and places of cultural or religious significance. Provisions for impact prevention and mitigation should be based on rigorous impact studies developed with the participation of the indigenous peoples concerned (see para. 65 above) and should be specific to the impacts identified with regard to particular rights that are recognized under domestic or international law. Additionally, they should

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include mechanisms for participatory monitoring during the life of the project, as well as provide for measures to address project closure.

74. The Special Rapporteur has learned of a number of instances in which indigenous peoples and companies have agreed to joint mechanisms to measure and address impacts on natural and cultural resources. Such mechanisms can provide for continual dialogue between indigenous peoples and companies about project impacts, thereby potentially strengthening indigenous peoples’ confidence in the projects and helping to build healthy relationships.

2. Arrangements for genuine partnership and sharing of benefits

75. The Special Rapporteur has called for models of resource extraction on indigenous territories that are different from the classical one in which indigenous peoples have little control over and benefit minimally from the extractive projects. One such alternative model, discussed in chapter II above and identified as a preferred model, is the one in which indigenous peoples themselves initiate and engage in resource extraction. For extractive projects promoted by outside companies or States, other models that are preferable to the classical one are those based on agreements in which indigenous peoples’ rights are fully protected and indigenous peoples are genuine partners in the projects, both participating in project decision-making and benefiting as such.

76. The justification for indigenous peoples to benefit from projects within their territories within a partnership model should be self-evident: even if they do not, under domestic law, own the resources to be extracted, they provide access to the resources and give up alternatives for the future development of their territories by agreeing to the projects. Direct financial benefits – beyond incidental benefits like jobs or corporate charity – should accrue to indigenous peoples because of the compensation that is due to them for the access to their territories and for any agreed-upon adverse project effects,21 as well as because of the significant social capital they contribute under the totality of historical and contemporary circumstances. At the same time, while thus being entitled to benefit from extractive projects carried out by others within their territories, indigenous peoples should have the option of participating in the management of the extractive projects, in addition to whatever regulatory control they may exercise, in keeping with their right to self-determination.

77. In this regard, the Special Rapporteur notes a pattern of agreements in some parts of the world in which indigenous peoples are guaranteed a percentage of profits from the extractive operation or other income stream and are provided means of participation in certain management decisions. In some cases the indigenous people concerned is provided a minority ownership interest in the extractive operation, and through that interest is able to participate in management decisions and profits from the project. The Special Rapporteur looks forward to further developments along these lines toward models of genuine partnership. Also, he notes the need in most cases for indigenous peoples to be assisted in building their financial and management capacity as they accept such opportunities.

3. Adequate grievance procedures

78. Adequate grievance procedures should also be included in agreements for extractive projects within indigenous peoples’ territories, in accordance with the Guiding Principles on Business and Human Rights (principles 25-31). In cases in which a private company is the operator of the extractive project, company grievance procedures should be established that complement the remedies provided by the State. The grievance procedures should be

21 See Saramaka People (footnote 13 above), paras. 138-140.

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devised and implemented with full respect for indigenous peoples’ own justice and dispute resolution systems.

V. Conclusions and recommendations

79. Indigenous peoples around the world have suffered negative, even devastating, consequences from extractive industries. Despite such negative experiences, looking toward the future it must not be assumed that extractive industries’ and indigenous peoples’ interests are entirely or always at odds with each other. However, models of resource extraction that are different from the heretofore prevailing model are required if resource extraction within indigenous peoples’ territories is to be carried out in a manner consistent with their rights.

80. A preferred model for natural resource extraction within indigenous territories is one in which indigenous peoples themselves control the extractive operations, through their own initiatives and enterprises. Indigenous peoples may benefit from partnerships with responsible, experienced and well-financed non-indigenous companies to develop and manage their own extractive enterprises.

81. When indigenous peoples choose to pursue their own initiatives for natural resource extraction within their territories, States and the international community should assist them to build the capacity to do so, and States should privilege indigenous peoples’ initiatives over non-indigenous initiatives.

82. Just as indigenous peoples have the right to pursue their own initiatives for resource extraction, as part of their right to self-determination and to set their own strategies for development, they have the right to decline to pursue such initiatives in favour of other initiatives for their sustainable development, and they should be supported in such other pursuits as well.

83. Indigenous individuals and peoples have the right to oppose and actively express opposition to extractive projects promoted by the State or third party business interests. Indigenous peoples should be able to oppose or withhold consent to extractive projects free from reprisals or acts of violence, or from undue pressures to accept or enter into consultations about extractive projects.

84. Indigenous peoples’ free, prior and informed consent is required, as a general rule, when extractive activities are carried out within indigenous territories. Indigenous consent may also be required when extractive activities otherwise affect indigenous peoples, depending on the nature of the activities and their potential impact on the exercise of indigenous peoples’ rights.

85. In this way, free, prior and informed consent is a safeguard for the internationally recognized rights of indigenous peoples that are typically affected by extractive activities carried out within their territories.

86. The general requirement of indigenous consent for extractive activities within indigenous territories may be subject to certain limited exceptions, in particular, when any limitations on indigenous peoples’ substantive rights comply with standards of necessity and proportionality with regard to a valid public purpose, defined within an overall framework of respect for human rights.

87. When a State determines that it is permissible to proceed with an extractive project that affects indigenous peoples without their consent, and chooses to do so, that decision should be subject to independent judicial review.

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88. Whether or not indigenous consent is a strict requirement in particular cases, States should ensure good faith consultations with indigenous peoples on extractive activities that would affect them and engage in efforts to reach agreement or consent. In any event, the State remains bound to respect and protect the rights of indigenous peoples and must ensure that other applicable safeguards are implemented as well, in particular steps to minimize or offset any limitation on the rights through impact assessments, measures of mitigation, compensation and benefit sharing.

89. For their part, extractive companies should adopt policies and practices to ensure that all aspects of their operations are respectful of the rights of indigenous peoples, in accordance with international standards and not just domestic law, including with regard to requirements of consultation and consent. Companies should conduct due diligence to ensure that their actions will not violate or be complicit in violating indigenous peoples’ rights, identifying and assessing any actual or potential adverse human rights impacts of a resource extraction project.

90. Conditions for States or third party business enterprises to achieve and sustain agreements with indigenous peoples for extractive projects include: adequate State regulatory regimes (both domestic and with extraterritorial implications) that are protective of indigenous peoples’ rights; indigenous participation in strategic State planning on natural resource development and extraction; corporate due diligence; fair and adequate consultation procedures; and just and equitable terms for the agreement.

91. Necessary features of an adequate consultation or negotiation over extractive activities include the mitigation of power imbalances; information gathering and sharing; provision for adequate timing of consultations, in an environment free of pressure; and assurance of indigenous peoples’ participation through their own representative institutions.

92. Agreements with indigenous peoples allowing for extractive projects within their territories must be crafted on the basis of full respect for their rights in relation to the affected lands and resources and, in particular, should include provisions providing for impact mitigation, for equitable distribution of the benefits of the projects within a framework of genuine partnership, and grievance mechanisms.

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Annex

[English only]

Summary of activities of the Special Rapporteur on the rights of indigenous peoples, James Anaya, 2012-2013

1. This following details the activities carried out by the Special Rapporteur on the rights of indigenous peoples pursuant to his mandate since he last reported to the Human Rights Council in 2012. Professor James Anaya is currently in the final year of his mandate, which ends 30 April 2014. Accordingly, the present report is the last report he submits to the Human Rights Council. However, he looks forward to bringing to the attention of the Council, through his successor, the activities undertaken during the remainder of his mandate.

2. The Special Rapporteur is grateful for the support provided by the staff at the United Nations Office of the High Commissioner for Human Rights. He would also like to thank the staff and researchers of the Special Rapporteur support project at the University of Arizona for their on-going assistance with all aspects of his work. Further, he would like to thank the many indigenous peoples, Governments, United Nations bodies and agencies, non-governmental organizations, and others that have cooperated with him over the past years in the implementation of his mandate.

A. Coordination with other human rights mechanisms and processes

3. Before detailing the tasks carried out under his own areas of work over the past year, the Special Rapporteur would like to describe to the Human Rights Council his efforts to coordinate with the other United Nations mechanisms that deal with indigenous issues, in particular the Permanent Forum on Indigenous Issues and the Expert Mechanism on the Rights of Indigenous Peoples. Coordination with these and other institutions is a fundamental aspect of the mandate of the Special Rapporteur, as the Human Rights Council calls on him “To work in close cooperation and coordination with other special procedures and subsidiary organs of the Council, in particular with the Expert Mechanism on the Rights of Indigenous Peoples, relevant United Nations bodies, the treaty bodies and regional human rights organizations; [and] to work in close cooperation with the Permanent Forum on Indigenous Issues and to participate in its annual session” (Council resolution 15/14, para. 1 (d) and (e)).

4. As in past years, the Special Rapporteur has participated in the annual sessions of these mechanisms, during which he has held parallel meetings with the numerous indigenous representatives and organizations that attend these sessions. These meetings provide a valuable opportunity for indigenous peoples to present cases of specific allegations of human rights violations and often result in action taken by the Special Rapporteur through the communications procedure, addressed below, or other follow up. During the sessions of the Permanent Forum and the Expert Mechanism, the Special Rapporteur also gave statements and participated in a lengthy interactive dialogue with Governments, indigenous representatives, and others present.

5. Also with respect to coordination with United Nations processes, on several occasions over the past year, the Special Rapporteur has participated in preparations for the World Conference on Indigenous Peoples, which will be convened by the General

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Assembly in 2014. In this connection, in December 2012, the Special Rapporteur, together with members of the Permanent Forum on Indigenous Issues and the Expert Mechanism on the Rights of Indigenous Peoples met in Guatemala to discuss their respective roles in preparation for and during the World Conference. The meeting included participation in ceremonies to mark the Oxlajuuj B’aqtun, the change of the era in the Maya calendar. In addition, in June 2013, the Special Rapporteur spoke at a preparatory session for the World Conference, held in Alta, Norway, which was hosted by the Sami Parliament of that country. The Alta meeting was attended by hundreds of indigenous peoples from around the world and resulted in an outcome document detailing their collective their expectations and proposals for the World Conference.

6. The Special Rapporteur has also continued to coordinate his work with regional human rights institutions. Most significantly, in April 2013, he participated in an “Exchange Workshop on Indigenous Peoples’ Rights Between the Inter-American Commission on Human Rights, the ASEAN Inter-Governmental Commission on Human Rights and the African Commission on Human and Peoples’ Rights” in Banjul, the Gambia. During the meeting, the Special Rapporteur presented his work in the African context and globally, and exchanged information with the regional mechanisms on common challenges and objectives for the promotion of the rights of indigenous peoples in their respective work areas. He also continues to dialogue with the African Commission and the Inter-American Commission on cases of common concern, and has followed up with several Governments regarding the status of implementation of decisions previously made by these bodies.

B. Areas of work

7. The Special Rapporteur has engaged in a range of activities within the terms of his mandate to monitor the human rights conditions of indigenous peoples worldwide and promote steps to improve those conditions. He has sought to incorporate a gender perspective, and be attentive to the particular vulnerabilities of indigenous children and youth. Overall, the Special Rapporteur has tried to develop work methods oriented towards constructive dialogue with Governments, indigenous peoples, non-governmental organizations, relevant United Nations agencies and other actors, in order to address challenging issues and situations and to build on advances already made. As detailed in previous reports to the Human Rights Council, the various activities that he has carried out in this spirit can be described as falling within four, interrelated spheres of activity: promoting good practices; country reports; cases of alleged human rights violations; and thematic studies.

1. Promotion of good practices

8. A first area of the Special Rapporteur’s work follows from the directive given by the Human Rights Council “To examine ways and means of overcoming existing obstacles to the full and effective protection of the rights of indigenous peoples … and to identify, exchange and promote best practices” (Council resolution 15/14, para. 1 (a)). The Special Rapporteur has been focused on working to advance legal, administrative, and programmatic reforms at the domestic level to implement the standards of the United Nations Declaration on the Rights of Indigenous Peoples and other relevant international instruments.

9. In this connection, the Special Rapporteur has continued to provide technical assistance to Governments in their efforts to develop laws and policies that relate to indigenous peoples. Most often, this technical assistance has dealt with the development of

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procedures surrounding the duty to consult with indigenous peoples about decisions that affect them. For example, at the request of the Government of Chile, he provided detailed comments on a draft regulation on indigenous consultation and participation, which he made public and discussed with government and indigenous representatives in November 2012. Also, in April 2013, the Special Rapporteur gave a keynote speech at the conference, “The Right of Indigenous Peoples to Prior Consultation: The Role of the Ombudsmen in Latin America”, which was convened by the Ibero-American Federation of Ombudsmen, in Lima, Peru. The conference brought together the Ombudsmen and heads of national human rights institutions throughout Latin America, as wells as indigenous leaders and government officials from Peru. While in Lima the Special Rapporteur followed up on previous technical assistance regarding the development of a law on consultation with indigenous peoples and a corresponding regulation.

10. More broadly, the Special Rapporteur has continued to encourage Governments to promote the United Nations Declaration on the Rights of Indigenous Peoples at the national level. In this regard, he gave the keynote address at the Commonwealth International Human Rights Day expert panel entitled “Strengthened Rights Protection for Indigenous Peoples”, which was organized by the Commonwealth Secretariat to commemorate International Human Rights Day, on 10 December 2012 in Geneva, Switzerland. In his statement, the Special Rapporteur emphasized that the Declaration presents the way forward for engagement with indigenous peoples in a succession of steps in the process of shedding the legacies of colonization. He urged the Commonwealth countries to reflect on the Declaration with a view towards developing measures to implement its terms.

11. Also in furtherance of his mandate to promote good practices, the Special Rapporteur has, on an on-going basis, provided inputs into various United Nations processes and activities that relate to indigenous peoples. Of note in this regard since last reporting to the Human Rights Council are the following:

• In March 2013, the Special Rapporteur participated in an “Expert Focus Group Seminar on Free, Prior and Informed Consent of Indigenous Peoples” and a “High Level Meeting on Engagement and Dialogue with Indigenous Peoples”, hosted by the World Bank. The meetings, which took place in Manila, Philippines, were carried out in the context of the World Bank’s review of its environmental and social safeguard policies, including its Operational Policy 4.10 on indigenous peoples, which apply to the Bank’s lending for investments in specific projects. In his statements at the meetings, the Special Rapporteur emphasized that the revised policy should be consistent with rights of indigenous peoples affirmed in the United Nations Declaration on the Rights of Indigenous Peoples. He further urged that the policies that apply to all the Bank’s financial and technical assistance, and not just its investment lending, be reviewed to ensure consistency with the Declaration.

• In February 2013, the Special Rapporteur provided the keynote address at the indigenous panel that opened the current session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, in Geneva. This Committee of the World Intellectual Property Organization was meeting to discuss a draft instrument on intellectual property rights and the protection of genetic resources and associated traditional knowledge. In his statement, the Special Rapporteur examined how the concepts of state sovereignty and property, which have been central to discussions at the Intergovernmental Committee, relate to the rights of indigenous peoples.

• In December 2012, The Special Rapporteur participated in the first Forum on Business and Human Rights in Geneva, Switzerland. The Special Rapporteur spoke at a panel on business affecting indigenous peoples. In his statement, Professor Anaya emphasized that there is a “need for change in the current state of affairs if

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indigenous rights standards are to have a meaningful effect on State and corporate policies and action as they relate to indigenous peoples”. He also provided an update on his on-going study on the issue of extractive industries affecting indigenous peoples.

• Finally, the Special Rapporteur has on numerous occasions, at the request of various United Nations institutions and specialized agencies, provided inputs into document being prepared that relate to indigenous peoples. These documents have mostly related to policies on consultation and free, prior and informed consent, as was the case with documents developed by the Food and Agriculture Organization of the United Nations and the United Nations Global Compact, for which the Special Rapporteur provided orientations and comments.

2. Country reports

12. A second area of the Special Rapporteur’s work involves investigating and reporting on the overall human rights situations of indigenous peoples in selected countries. The reports of the country situations include conclusions and recommendations aimed at strengthening good practices, identifying areas of concern, and improving the human rights conditions of indigenous peoples. The reporting process involves a visit to the countries under review, including to the capital and selected places of concern within the country, during which the Special Rapporteur interacts with Government representatives, indigenous communities from different regions and a cross section of civil society actors that work on issues relevant to indigenous peoples.

13. Since the Special Rapporteur’s last report to the Human Rights Council, he has completed country visits to El Salvador, Namibia, and Panama. The reports on the situation of indigenous peoples in Namibia and El Salvador are included as addendums to the main thematic report (A/HRC/24/41/Add.1 and A/HRC/24/41/Add.2, respectively). The Special Rapporteur is in the process of drafting his report on the situation of indigenous peoples in Panama, following a visit to that country in July 2013, and that report will be presented to the Human Rights Council in 2014.

14. In addition, in March 2013, the Special Rapporteur held a consultation in Kuala Lumpur, Malaysia with indigenous representatives from countries throughout the Asia region, and on the basis of these consultations, prepared a report, which will be published as an addendum to the present report (A/HRC/24/41/Add.4). The Special Rapporteur was very pleased with the comprehensive information that was provided by indigenous representatives during the consultation, and was grateful for the assistance of the Asia Indigenous Peoples Pact and the Malaysia National Human Rights Institution, SUHAKAM, for their work in hosting and organizing that event.

15. Later this year the Special Rapporteur will be carrying out a visit to Peru, and he hopes also to receive confirmation from Canada for dates to visit that country before the end of 2013. He also looks forward to visiting one or two additional countries before his mandate ends in May 2014.

3. Examination of specific allegations of human rights violations

16. On an on-going basis, the Special Rapporteur has responded to specific cases of alleged human rights violations. A fundamental aspect of the mandate of the Special Rapporteur is to “To gather, request, receive and exchange information and communications from all relevant sources, including Governments, indigenous peoples and

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their communities and organizations, on alleged violations of the rights of indigenous peoples” (Council resolution 15/14, paragraph 1 (b)).

17. Within the resources available to him, the Special Rapporteur does his best to act on all submissions that include complete and well-documented information, in cases that involve violations of the rights of indigenous peoples that may not be adequately addressed by domestic authorities. Full copies of letters sent and replies received are contained in the Joint Communications Report of Special Procedures Mandate Holders issued periodically by the Office of the United Nations High Commissioner for Human Rights (A/HRC/22/67 and Corrs. 1 and 2, and A/HRC/23/51). Over the past year, the Special Rapporteur examined a total 37 cases in the following countries: Australia, Bangladesh, Botswana, Brazil, Cameroon, Canada, Chile, Colombia, Costa Rica, Ethiopia, Guatemala, Israel, Kenya, Mexico, Nepal, New Zealand, Nicaragua, Peru, Philippines, Russian Federation, Suriname, United Republic of Tanzania, United States of America, and the Bolivarian Republic of Venezuela.

18. The Special Rapporteur has placed a special importance on following up on the situations reviewed, issuing in numerous cases observations and recommendations to the Governments concerned. Summaries of all letters sent by the Special Rapporteur and replies received by Governments since last reporting to the Human Rights Council, as well as observations and recommendations issued by the Special Rapporteur in these cases, are contained in an addendum to the present report (A/HRC/24/41/Add.5).

19. The cases addressed over the past year reveal that many ongoing barriers to the full enjoyment of the rights of indigenous peoples persist throughout the world. These cases involve threats to the enjoyment of indigenous peoples’ rights to their traditional lands and resources, acts of violence against indigenous peoples and individuals, including against indigenous women and children, the forced removal of indigenous peoples for large-scale development projects, the suppression of indigenous peoples own forms of organization and self-government, and conditions of poverty and related socials ills that are perpetuated by patterns of discrimination.

20. Also, on several occasions since last reporting to the Human Rights Council, the Special Rapporteur has issued public statements concerning situations that, in his view, require immediate and urgent attention by the Governments concerned. Public statements were issued in relation to the following situations: acts of violence between indigenous Tagaeri-Taromenane and Waorani peoples of the Yasuní Biosphere Reserve, Ecuador; rising tensions and violence against indigenous peoples by non-indigenous settlers in the Bosawas Reserve, Nicaragua; protests by First Nations and a month-long hunger strike by the Chief of the Attawapiskat First Nation, in Canada; violent clashes between indigenous protesters and members of the military that resulted in the death of six indigenous persons, in Guatemala; the imminent sale of land that encompasses a site of spiritual significance to indigenous peoples in South Dakota, United States; and a process of dialogue to address the military presence in the Nasa territory, Colombia.

4. Thematic studies

21. For the past three years, the thrust of the thematic focus of the Special Rapporteur has been on the issue of extractive industries affecting indigenous peoples. The Special Rapporteur’s last report on this issue is contained in the main report presented to the Human Rights Council this year. As detailed in the main report, over the past year, the Special Rapporteur has participated in numerous meetings to gather perspectives on the issue from indigenous peoples, Governments, and companies, including meetings in Australia, Norway, Sweden, the United Kingdom of Great Britain and Northern Ireland, and the United States. Additionally, as part of his study, he launched an online forum to

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gather examples of specific extractive projects that are being carried out in or near indigenous peoples territories. The Special Rapporteur is grateful for the numerous contributions provided through these media from indigenous peoples, Governments, companies, and non-governmental organizations from around the world.

22. A second area of thematic focus of the Special Rapporteur has been to provide comments on the need to harmonize the myriad activities within the United Nations system that affect indigenous peoples. In 2012, the Special Rapporteur’s report to the General Assembly (A/67/301) provided an overview of the various processes and programmes within the United Nations system that are of particular relevance to indigenous peoples or about which indigenous peoples have expressed concern. These include processes and programmes related to UNESCO; the Food and Agriculture Organization of the United Nations; the World Intellectual Property Organization; and the World Bank Group; as well as processes carried out within the framework of United Nations treaties like the Convention on Biological Diversity and the United Nations Framework Convention on Climate Change.

23. The Special Rapporteur notes that the United Nations has done important work to promote the rights of indigenous peoples but that greater effort is needed to ensure that all actions within the United Nations system that affect indigenous peoples are in harmony with international standards, particularly those standards articulated in the United Nations Declaration on the Rights of Indigenous Peoples.

GE.11-14639

Human Rights Council Eighteenth session Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya

Extractive industries operating within or near indigenous territories

Summary The present report is the fourth annual report submitted to the Human Rights Council by the Special Rapporteur on the rights of indigenous peoples, pursuant to Council resolution 15/14.

In the present report, the Special Rapporteur provides a summary of the activities carried out during his third year in the mandate, including cooperation with other international and regional mechanisms and bodies in the field of indigenous rights, and the activities carried out in his four main areas of work: promoting good practices; country reports; specific cases of alleged human rights violations; and thematic studies.

The Special Rapporteur devotes the second half of the report to an analysis of the impact of extractive industries operating within or near indigenous territories following the distribution of a questionnaire on the issue to Governments, indigenous peoples, corporations and civil society. The growing awareness of the impact of extractive industries on the rights of indigenous peoples is further raised by the concerns expressed by many of the responses received confirming the assertion that these projects and industries are becoming the greatest challenges to the exercise of the rights of indigenous peoples. This situation is further evidenced by the lack of understanding of basic minimum standards on the effects of extractive industries affecting indigenous peoples and about the role and responsibility of the State to ensure protection of their rights.

The Special Rapporteur concludes with the need to continue the study of this issue

United Nations A/HRC/18/35

General Assembly Distr.: General 11 July 2011 Original: English

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through further consultations towards the operationalization of the rights of indigenous peoples in the context of natural resource extraction affecting indigenous territories in order to be able to present a specific set of guidelines or principles by 2013.

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Contents

Paragraphs Page

I. Introduction ............................................................................................................... 1-2 4

II. Summary of activities................................................................................................ 3-21 4

A. Cooperation with other international mechanisms and bodies........................ 3-7 4

B. Areas of work.................................................................................................... 8-21 5

III. Extractive industries operating within or near indigenous territories ...................... 22-80 8

A. Review of the responses to the Special Rapporteur’s questionnaire............... 27-55 9

B. Preliminary assessment..................................................................................... 56-68 14

C. Plan of work...................................................................................................... 69-80 16

IV. Conclusions and recommendations........................................................................... 81-89 18

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I. Introduction

1. The present report is submitted to the Human Rights Council by the Special Rapporteur on the rights of indigenous peoples pursuant to his mandate under Council resolution 15/14. In the report, the Special Rapporteur provides a summary of the activities carried since his previous report to the Council (A/HRC/15/37). He then identifies and analyses the issues relating to extractive industries operating on or near indigenous lands.

2. The Special Rapporteur acknowledges with gratitude the assistance provided by the Support Project for the Special Rapporteur on Indigenous Peoples at the University of Arizona College of Law. This assistance was indispensable for the preparation of the report and the addenda thereto, and for carrying out the work reflected in these reports. He is also thankful to the many indigenous peoples, States, United Nations bodies and agencies and non-governmental organizations that cooperated with him over the past year in the implementation of his mandate.

II. Summary of activities

A. Cooperation with international mechanisms and bodies

3. The Special Rapporteur continued to implement his mandate while cooperating with the Permanent Forum on Indigenous Issues and the Expert Mechanism on the Rights of Indigenous Peoples, as mandated by the Human Rights Council in its resolutions 6/12 and 15/14. As in past years, he attended the annual sessions of the Permanent Forum, in May 2011, and of the Expert Mechanism, in July 2011, and participated in discussions of issues that are under consideration by them. In particular, he contributed to the study of the Expert Mechanism on the right of indigenous peoples to participation and provided comments relevant to the review of the Permanent Forum of its priorities and working methods during its previous session.

4. Additionally, during the annual sessions of the above mechanisms, the Special Rapporteur continued his practice of holding parallel meetings with indigenous peoples and organizations, which provided him with an invaluable opportunity to meet with representatives of indigenous peoples and organizations to learn of specific situations and concerns, in a manner complementing the more general discussions of indigenous issues by the Permanent Forum and Expert Mechanism during their annual sessions.

5. In July 2011, as on previous occasions, the Special Rapporteur met with the members of the Expert Mechanism and representatives of the Permanent Forum in Geneva to share work agendas, discuss the strengths and limitations of their respective mandates and explore methods for most effectively carrying out their work.

6. The Special Rapporteur moreover continued to combine efforts with a range of United Nations, regional and specialized bodies on matters concerning indigenous peoples. Over the past year, the Special Rapporteur has provided observations on initiatives of the United Nations Development Programme (UNDP), the Office of the United Nations High Commissioner for Human Rights (OHCHR), the International Finance Corporation of the Word Bank Group, the World Intellectual Property Organization (WIPO) and the Pan-American Health Organization. This work relates to the Special Rapporteur’s efforts to promote good practices (see paragraphs 8 – 14 below).

7. The Special Rapporteur continued to exchange information with the Inter-American Commission on Human Rights on cases of alleged violations of the rights of indigenous peoples in the Americas in an attempt to ensure coordinated efforts and to avoid unnecessary duplication.

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B. Areas of work

8. While cooperating with other international mechanisms, the Special Rapporteur continued to carry out work in four interrelated areas: promotion of good practices; country reports; communications on specific cases of alleged human rights violations; and thematic studies.

1. Promotion of good practices

9. In accordance with his mandate, the Special Rapporteur continued to advocate for legal, administrative and programmatic reforms at the domestic and international levels to give effect to the rights enshrined in the United Nations Declaration on the Rights of Indigenous Peoples and other relevant international instruments.

10. An important aspect area of work was promoting support for the Declaration on the Rights of Indigenous Peoples by those States that did not originally vote in favour of it upon its adoption by the General Assembly in 2007.1 In the past year, the Special Rapporteur has welcomed the statements of support for the Declaration by the Governments of Canada and of the United States of America, statements that have made their opposition to the Declaration a thing of the past. The outstanding challenge is still to implement the Declaration’s provisions through concerted efforts at the domestic and international levels. The Special Rapporteur is committed to working together with States, United Nations agencies, indigenous peoples and other interested parties in order to meet this challenge.

11. In connection with promoting the implementation of the Declaration in the United States, in June 2011, the Special Rapporteur provided testimony at a hearing of the United States Senate Committee on Indian Affairs entitled “Setting the standard: the domestic policy implication of the UN Declaration on the Rights of Indigenous Peoples”.

12. On an ongoing basis over the past year, the Special Rapporteur provided technical and advisory assistance to Governments as they developed laws and policies to advance the rights of indigenous peoples. For example, at the request of the Government of Suriname, and of indigenous and tribal peoples in that country, the Special Rapporteur provided observations and recommendations on a process to develop legislation to secure indigenous and tribal peoples’ rights to lands and resources in the light of binding judgements issued thereon by the Inter-American Court of Human Rights.2 These observations and recommendations were based in part on information gathered during a visit to Suriname by the Special Rapporteur in March 2011.

13. Also during the past year, the Special Rapporteur provided comments on various drafts of legislation currently under consideration by the National Assembly of Ecuador to coordinate indigenous customary justice systems with the national justice system. In this connection, in June 2011, the Special Rapporteur participated in a videoconference with the National Assembly of Ecuador, during which he addressed specific questions and concerns regarding the proposed legislation. Furthermore, over the course of several weeks in February 2011, the Special Rapporteur provided observations on the initiative of the Government of Guatemala to regulate a procedure for consultation with indigenous peoples.

14. Other activities relating to the promotion of best practices include providing guidance and orientation to numerous United Nations programmes and agencies, multinational organizations and other groups on the rights of indigenous peoples in various contexts. This has included the following activities:

1 General Assembly resolution 61/295. 2 See A/HRC/18/35/Add.7.

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• In November 2010, the Special Rapporteur participated in a seminar in Geneva on land and human rights, hosted by OHCHR, providing information and analysis of the particular human rights concerns of indigenous peoples in relation to lands

• In January 2011, the Special Rapporteur participated in a meeting in Paris of a working group of State delegates to the Organization for Economic Cooperation and Development (OECD), providing comments to draw attention to indigenous issues in the process of updating the OECD Guidelines for Multinational Enterprises

• In February 2011, the Special Rapporteur provided extensive observations on the UNDP draft guidelines on consultation with indigenous peoples for activities carried out in the context of the climate change mitigation programme for reducing emissions from deforestation and forest degradation (REDD)

• Also in February 2011, the Special Rapporteur provided input into the development of a regional intercultural health policy by the Pan-American Health Organization during a special meeting convened in Washington, D.C.

• In March 2011, the Special Rapporteur gave the keynote address at an expert workshop in Berlin, convened by the Federal Ministry on Economic Cooperation and Development of Germany concerning German development cooperation in Africa and Asia

• At various times over the past year, the Special Rapporteur provided guidance to the International Finance Corporation during the review of its Performance Standard 7 on indigenous peoples, including by meeting with Corporation officials, and providing written comments on drafts of the Performance Standard

• In April 2011, the Special Rapporteur gave the keynote address at the biennial conference of the New South Wales Aboriginal Land Council in Australia, at which the Land Council discussed the United Nations Declaration on Rights of Indigenous Peoples as a benchmark for major aspects of its work

• In May 2011, the Special Rapporteur gave the keynote speech at a session in Geneva of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore , which is in the process of developing an international legal instrument on traditional knowledge, genetic resources and traditional cultural expressions

• The Special Rapporteur has been working in ongoing collaboration with UNDP to produce a resource guide on indigenous peoples’ rights for UNDP staff and others working on indigenous issues

2. Country reports

15. Over the past year, the Special Rapporteur has issued various reports on the human rights situation of indigenous peoples in specific countries (see addenda to the present report). These reports include conclusions and recommendations aimed at strengthening good practices, identifying areas of concern and improving the human rights conditions of indigenous peoples in specific countries or regions. Since submitting his previous report to the Human Rights Council, the Special Rapporteur has completed his reports on the situation of Sami people living in the Sápmi region of Norway, Sweden and Finland (A/HRC/18/35/Add.2) and on the situation of the Maori people in New Zealand (A/HRC/18/35/Add.4). In 2011, the Special Rapporteur will also present reports to the Human Rights Council on indigenous peoples in the Congo (A/HRC/18/35/Add.5) and in New Caledonia (France) (A/HRC/18/35/Add.6).

16. Later in 2011, the Special Rapporteur will carry out a visit to Argentina. He has also received invitations from the Governments of Panama and of El Salvador to evaluate the situation of indigenous peoples in those countries. The Special Rapporteur has outstanding

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requests to visit Bangladesh, Cambodia, Malaysia, Papua New Guinea and the United States, which he hopes will be considered favourably.

3. Specific cases of alleged human rights violations

17. Pursuant to his mandate from the Human Rights Council, the Special Rapporteur has continued to gather, request, receive and exchange information from all relevant sources, including indigenous peoples and Governments on cases of alleged human rights violations. The Special Rapporteur has also continued his practice of providing observations and recommendations on the underlying human rights issues involved in cases under consideration. Summaries of the letters sent by the Special Rapporteur communicating his concerns over particular situations and responses received from Governments, together with the Special Rapporteur’s observations and recommendations, are included in his communications report (A/HRC/18/35/Add.1).

18. As has been his practice since the beginning of his mandate, the examination of particular cases has also involved on-site visits to examine in greater depth the issues raised in communications with Governments. In April 2011, the Special Rapporteur travelled to Costa Rica to assess the situation of indigenous peoples affected by the potential construction of the Diquís hydroelectric project. Following that visit, the Special Rapporteur provided the Government and indigenous stakeholders with his observations and recommendations on the situation (see A/HRC/18/35/Add.8); he looks forward to continuing his constructive dialogue with the Government and affected indigenous groups about this situation. Also in the past year, the Special Rapporteur completed a report on natural resource extraction and other projects affecting indigenous peoples in Guatemala, as well as a report on the specific case of the Marlin Mine in that country (A/HRC/18/35/Add.3). These reports were largely based on information gathered during the Special Rapporteur’s visit to Guatemala in June 2010.

19. On occasion, the Special Rapporteur has issued media or other public statements on issues of immediate concern arising in specific countries. Public statements that the Special Rapporteur has issued since his previous report to the Human Rights Council have related to Government reactions to protests by Rapa Nui people in Easter Island (Chile); concerns surrounding a hunger strike by Mapuche indigenous prisoners protesting charges brought against them under an anti-terrorism law in Chile; protests by indigenous peoples in Panama against legislation on mining; laws and policies regarding consultation with indigenous peoples in Peru; and concerns over legislation adopted by the state of Arizona (United States) allowing enhanced police powers to detain suspected illegal immigrants, and the effects of this legislation on indigenous peoples in the United States/Mexico border region.

4. Thematic studies

20. The Special Rapporteur has continued to examine recurring issues of interest and concern to indigenous peoples worldwide. As noted above, the Special Rapporteur provided input to the study of the Expert Mechanism on the Rights of Indigenous Peoples on the right of indigenous peoples to participate in decision-making, including during a meeting of experts convened by the Expert Mechanism in March 2011, in Geneva. In particular, he shared examples of good practices of indigenous participation in various contexts based on cases that have come to his attention during his tenure as a mandate holder.

21. Building on his previous thematic studies on the duty to consult with indigenous peoples3 and the responsibility of corporations to respect the rights of indigenous peoples,4 in 2011 the Special Rapporteur is examining issues associated with large-scale projects for

3 See A/HRC/12/34. 4 A/HRC/15/37.

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the extraction or development of natural resources on or near indigenous lands. A review of the responses to a questionnaire on these issues and an initial assessment has been incorporated into the section below.

III. Extractive industries operating within or near indigenous territories

22. The impact of extractive industries on indigenous peoples is a subject of special concern to the Special Rapporteur. In several country-specific5 and special reports,6 and in his review of particular cases,7 he has examined various situations in which mining, forestry, oil and natural gas extraction and hydroelectric projects have affected the lives of indigenous peoples. Also, as noted above, the Special Rapporteur’s previous thematic studies have focused on the duty of States to consult indigenous peoples and corporate responsibility, issues that invariably arise when extractive industries operate or seek to operate on or near indigenous territories.

23. In 2003, in his report to the Commission on Human Rights, the previous mandate holder examined issues associated with large-scale development projects, raising concern about the long-term effects of a certain pattern of development that entails major violations of the collective cultural, social, environmental and economic rights of indigenous peoples within the framework of the globalized market economy.8

24. Since then, numerous developments have taken place in this area. In 2007, the discussion and adoption by the General Assembly of the United Nations Declaration on the Rights of Indigenous Peoples contributed to a greater awareness about the human rights implications for indigenous peoples of natural resource extraction and other development projects. Following the revision of World Bank policy on indigenous peoples in 2005, several international and regional financial institutions have developed their own policies and guidelines regarding public or private projects affecting indigenous peoples.9 Among the latest of these developments, in May 2011, OECD updated its Guidelines for Multinational Enterprises to strengthen standards for corporations in the field of international human rights, including those pertaining to indigenous peoples. Also, the International Financial Corporation has undertaken a revision of its performance standard on indigenous peoples, a process to which the Special Rapporteur contributed (see paragraph 14 above).

25. The work of the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, which has led to the development of the “Protect, Respect and Remedy” framework and the principles for its implementation, has further contributed to raising the awareness of the impact of business operations on human rights. The framework and principles, which were endorsed by the Human Rights Council in its resolution 17/4, provide further grounding for advancing in the operationalization of indigenous peoples’ rights in the context of business operations.

26. Extractive industry activities generate effects that often infringe upon indigenous peoples’ rights; public agencies and private business enterprises involved in the extraction or development of natural resources, in both developing and developed countries, have

5 See for example A/HRC/15/37/Add.5, paras. 41-51; A/HRC/15/27/Add.4, para. 27;

A/HRC/15/37/Add.2, paras. 41-42; A/HRC/12/34/Add.6, paras. 33-39; and A/HRC/12/34/Add.2, paras. 55-58.

6 See A/HRC/15/35/Add.4; A/HRC/18/35/Add.8; and A/HRC/12/34/Add.5. 7 See A/HRC/15/37/Add.1A/HRC/12/34/Add.1. 8 E/CN.4/2003/90, para. 69. 9 See A/HRC/9/9, para. 72.

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contributed to these effects. Notably, some Governments have attempted to mitigate the negative effects of extractive operations, yet human rights continue to be violated as a result of an increasing demand for resources and energy. The Special Rapporteur considers the ever-expanding operations of extractive industries to be a pressing issue for indigenous peoples on a global scale. He therefore aims to contribute to efforts to clarify and resolve the problems arising from extractive industries in relation to indigenous peoples.

A. Review of responses to the Special Rapporteur’s questionnaire

27. On 31 March 2011, the Special Rapporteur distributed a questionnaire in order to collect and understand views, concerns and recommendations relating to extractive industries operating on or near indigenous territories. The initiative was received favourably, generating a large number of responses from Governments, indigenous peoples, corporations and members of civil society. Academic experts and members of indigenous communities acting in their individual capacities also made valuable contributions to the study.

28. The Special Rapporteur cordially thanks all contributors for their detailed responses to the questionnaire and appreciates their support for his efforts to fulfil his mandate to examine ways and means of overcoming existing obstacles to the full and effective protection of the rights of indigenous peoples and to identify, exchange and promote best practices.

29. The sections below contain an overview of the main issues raised in questionnaire responses, with a primary focus on the perceived challenges created by extractive industries operating in indigenous territories. It should be noted that the Special Rapporteur requested and received examples of good practices in relation to natural resource extraction projects operating in or near indigenous territories. He continues to analyse these examples and hopes to provide further reflections on good practices in his future observations on the issue of natural resource extraction and indigenous peoples.

1. Environmental impact

30. Responses to the Special Rapporteur’s questionnaire by States, businesses and indigenous peoples provide a detailed review of the significant impact that extractive industries have had on indigenous peoples’ lands and resources. The gradual loss of control over indigenous lands, territories and natural resources was listed by respondents as a key concern, an issue that is seen as stemming from deficient protective measures for indigenous communal lands. The majority of indigenous representatives and organizations also listed environmental impact as a principle issue of concern. Responses highlighted examples of the degradation and destruction of ecosystems caused by extractive industries, as well as the devastating resultant effects on indigenous peoples’ subsistence economies, which are closely linked to these ecosystems. Common negative environmental effects reported in the responses include the pollution of water and lands and the depletion of local flora and fauna.

31. With respect to the negative impact of extractive operations on water resources, it was noted that water resource depletion and contamination has had harmful effects on available water for drinking, farming and grazing cattle, and has affected traditional fishing and other activities, particularly in fragile natural habitats. For example, the Government of the Philippines described an open-pit mining operation in the province of Benguet, where operations had left a wasteland where “no fresh fish could ever be found in creeks and rivers”. It should be noted that reports of the adverse impact of extractive operations on water resources were not limited to exceptional cases of, for example, oil pipeline breaks. Adverse effects have also reportedly resulted from routine operations or natural causes, including the drainage of industrial waste into water systems caused by rain.

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32. A number of Governments and companies highlighted the fact that a significant proportion of harmful environmental effects of extractive industry operations could be traced back to past practices that would be deemed unacceptable under current legal and extractive industry standards. For example, the Regional Association of Oil, Gas and Biofuels Sector Companies in Latin American and the Caribbean indicated that, throughout Latin America, serious environmental problems persist from the unregulated oil extraction activities that took place for more than 40 years. Similarly, the Government of Ecuador made reference to the Chevron-Texaco operations in the Amazon region, stating that the negative environmental legacy resulted from past resource exploitations that lacked regulation and control.

33. Numerous questionnaire respondents also made an explicit connection between environmental harm and the deterioration of health in local communities. Several respondents suggested that the overall health of the community had been negatively affected by water and airborne pollution. Other reports highlighted an increase in the spread of infectious disease brought about by interaction with workers or settlers immigrating into indigenous territories to work on extractive industry projects. Respondents also linked environmental degradation to the loss of traditional livelihoods, which consequently threatens food security and increases the possibility of malnutrition.

2. Social and cultural effects

34. A second major issue cited by questionnaire respondents focused on the adverse impact of extractive industry operations on indigenous peoples’ social structures and cultures, particularly when those operations result in the loss of lands and natural resources upon which indigenous communities have traditionally relied. In such cases, resource extraction can jeopardize the survival of indigenous groups as distinct cultures that are inextricably connected to the territories they have traditionally inhabited.

35. Several indigenous and non-governmental organizations reported that the forced emigration of indigenous peoples from their traditional lands – either because of the taking of those lands or environmental degradation caused by resource extraction projects – has had an overall negative impact on indigenous cultures and social structures. One non-governmental organization dramatically described the migration process as the transition of “ecosystem people” into “ecological refugees”. One civil society respondent from India described the negative effects of the continuous reallocation of a significant number of Adivasi and other tribal peoples as a result of large-scale developments projects, particularly dams. Many of these projects provided very little or no compensation for those forced to relocate. This problem was reported to have an especially negative effect on Adivasi women, who have apparently experienced loss of social, economic and decision-making power when removed from their traditional territorial- and forestry-based occupations.

36. According to respondents, non-indigenous migration into indigenous territories and its related consequences also have a negative effect on indigenous social structures. Examples identified by respondents of non-indigenous migration into indigenous lands include illegal settlement by loggers or miners, the influx of non-indigenous workers and industry personnel brought in to work on specific projects, and the increased traffic into indigenous lands owing to the construction of roads and other infrastructure in previously isolated areas. For its part, the Government of the Democratic Republic of the Congo expressed concern regarding the alarming rates of alcoholism and prostitution previously unheard of among the indigenous peoples. In Colombia, the arrival of extractive industries in indigenous areas has reportedly triggered the infiltration of indigenous territories by drug traffickers and guerrillas, together with the militarization of those territories.

37. Indigenous organizations and leaders reported a significant deterioration in communal social cohesion and the erosion of traditional authority structures with the increase of extractive operations. Community members often take opposing positions

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regarding the perceived benefits of resource extraction, resulting in conflict that, at times, erupted into violence. Social conflict appears to be particularly prevalent when economic benefits are transferred directly to individuals or limited jobs are available. Several Governments and companies also cited cases of bribery and corruption of indigenous leaders as areas of concern, although no in-depth reflection on the root causes of these patterns were included in their responses.

38. Submissions by indigenous peoples and non-governmental organizations also reported an escalation of violence by Government and private security forces as a consequence of extractive operations in indigenous territories, especially against indigenous leaders. Furthermore, a general repression of human rights was reported in situations where entire communities had voiced their opposition to extractive operations. In this connection, political instability, violent upheavals and the rise of extremist groups in indigenous areas have also reportedly resulted from the presence of extractive industries in indigenous territories.

39. Numerous questionnaire respondents highlighted the adverse effects that natural resource extraction projects operating in indigenous territories had on important aspects of indigenous culture, such as language and moral values. Additionally, respondents noted that projects had led to the destruction of places of culture and spiritual significance for indigenous peoples, including sacred sites and archaeological ruins.

40. Various respondents, including companies, recognized the need for a “different approach” when dealing with indigenous communities and extractive activities. This could include, for example, the evaluation of community-specific social and cultural effects and the development of community-specific mitigation measures. It was also suggested that cultural awareness training for company employees and subcontractors may be helpful in countering the negative impact on the social and cultural aspects of indigenous communities.

3. Lack of consultation and participation

41. An important cross-section of indigenous peoples, Governments and companies noted that affected indigenous peoples needed to be consulted about and be involved in the operation of natural resource extraction projects that affect them. This need was identified, depending on the identity of the respondent, as both a right affirmed in international and domestic law and a matter of pragmatism: a preventative measure to avoid project opposition and social conflicts that could result in the disruption of project operations.

42. Governments and business respondents provided considerable examples of social conflicts that had resulted from a lack of consultation with indigenous communities, and noted that solutions to these conflicts had invariably entailed opening a dialogue with indigenous peoples and arriving at agreements that addressed, among other issues, reparation for environmental damages and benefit-sharing.

43. Government and private-sector respondents also reported that past negative experiences often frustrated present consultations with indigenous peoples. According to the Mexican National Commission for the Development of Indigenous Peoples, as a result of past experiences, indigenous communities now fear that companies “may enter at any moment”. Lack of prior involvement, labour conflicts, unmitigated environmental damage and unfulfilled promises were identified as reasons why many indigenous communities fear or outright reject current proposals for extractive projects in their territories, even before receiving information on potential new projects or engaging in discussions about possible arrangements in this connection.

44. Several Governments provided the Special Rapporteur with information describing recent domestic legal and policy reforms that specifically relate to the regulation of the State’s duty to consult indigenous peoples regarding extractive industry activities. These reforms have entailed both the drafting of general consultation laws and policies, and

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relevant revisions to “sectorial” legislation, namely, legislation relating to the use of specific resources such as minerals, forests or water resources. Some already existing mechanisms for consultation with indigenous peoples were also identified. Notably, Norway and Finland highlighted relevant domestic laws and policies that require consultations with the respective Saami Parliaments in those countries, in relation to extractive industry projects and other development plans in Saami-populated areas.

45. Although some progress is being made domestically, several responses from private business entities expressed concern over the significant level of uncertainty surrounding consultation procedures. A survey of business responses suggest that questions remain regarding the scope and implications of consultations, as well as the specific circumstances that may trigger the duty to consult. Uncertainty also remains for Governments and businesses regarding the identification of communities with whom it is necessary to consult, in particular indigenous communities whose lands have not been demarcated by the State and communities in which both indigenous and non-indigenous peoples live. The Government of Peru also observed that restricting the consultation process to communities found in direct impact areas fails to account for communities found outside those areas but that are nevertheless affected by extractive projects.

46. Various indigenous peoples’ submissions spoke to the challenges involved in obtaining accurate information about the potential impact of proposed extractive industry projects on indigenous peoples’ environment and daily lives. The Sucker Creek First Nation of Canada reported the difficulties of their communities when attempting to navigate complex information in consultation and negotiation phases. The information it provided suggested that indigenous communities may lack the technical expertise necessary to engage as equals in consultation and negotiations, which leaves them reliant on impact assessments provided by extraction companies, which reportedly do not always assess accurately the full extent of potential impact on indigenous peoples.

47. A considerable number of indigenous respondents maintain that extractive companies carry out consultations as a mere formality in order to expedite their activities within indigenous territories. In that connection, the Lubicon Lake Indian Nation in Canada indicated that the statutory duty to consult indigenous peoples had not been adequately implemented in practice to the extent that “good faith-consultations” undertaken by companies do not require the indigenous peoples’ consent or accommodation of their viewpoints. It also reported that indigenous peoples’ input does not substantively affect pre-established Government or industry plans.

4. Lack of clear regulatory frameworks and other institutional weakness

48. Representatives of business enterprises reported that deficient domestic regulatory frameworks create barriers to carrying out their operations in a way that respects indigenous peoples’ rights and interests. Several businesses contended that this lack of clarity constituted a major obstacle to their ability to undertake their operations in a manner consistent with international expectations regarding the rights of indigenous peoples. In turn, this lack of legal certainty is perceived by corporate actors as a cause of costly conflicts with local indigenous communities.

49. Corporate responses point out three particular areas in which a clear regulatory framework is often lacking: the content and scope of indigenous peoples’ rights over their lands, territories and natural resources, particularly in those instances in which traditional land tenure has not been officially recognized through titling or otherwise; consultation procedures with indigenous peoples; and benefit-sharing schemes. With regard to these issues, the examples of best practices shared by companies related more to their voluntary practices and initiatives than to the meeting of the legal requirements of the countries in which they operate.

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50. Business respondents and indigenous peoples noted that difficulties can arise even when domestic legal and policy standards exist, because Governments often lack the political will to implement those standards, and rather pass the responsibility on to companies and indigenous peoples. From a business perspective, this creates uncertainty and leads to additional business costs, beyond securing official permits and other administrative requirements. A number of business respondents observed the need to enter into agreements with local indigenous communities prior to launching their operations as a means of preventing future problems.

51. Additionally, information provided suggested that a lack of coordination and institutional capacity leads to insufficient operational oversight of extractive industries by States. Respondents, including Governments, observed that State institutions responsible for indigenous affairs or other relevant State institutions often worked with limited institutional and budgetary resources, resulting in limited or no oversight of extractive operations.

5. The question of tangible benefits

52. Contrasting perspectives exist with regard to the benefits of extractive operations. Various Governments and companies identified benefits to indigenous peoples resulting from natural resource extraction projects, while, in general, indigenous peoples and organizations reported that benefits were limited in scope and did not make up for the problems associated with these projects.

53. Several Governments highlighted the key importance of natural resource extraction projects for their domestic economies that, in a number of countries, reportedly account for up to 60 to 70 per cent of GNP. Governments also indicated that extractive projects have positive benefits for indigenous peoples and others in the regions where they operate. Responses highlighted the fact that significant proportions of State royalties and other revenues from extractive operations are assigned to regional or local government structures (as indicated in the response from Peru), to regional development funds (for example, in the Ecuadorian Amazon region) or, more exceptionally, to indigenous organizations (for example, in Bolivia (Plurinational State of)). In particular, the Government of Bolivia (Plurinational State of) highlighted a scheme intended to benefit indigenous peoples by allocating a significant percentage of hydrocarbon taxes either directly to the country’s main indigenous organizations or to the Fondo de Desarrollo para los Pueblos Indígenas Originarios y Comunidades Campesinas (a development fund for indigenous peoples and farm worker communities). Job opportunities were also commonly cited as a direct benefit derived from extractive operations in indigenous territories.

54. A number of mining companies noted that indigenous peoples had been direct beneficiaries of basic infrastructure construction required for their operations in remote areas, including the construction of roads, improvements in communications and the delivery of electricity and water services. They also cited social benefits derived from resource extraction projects, such as health and educational opportunities in underserved areas or capacity-building programmes that support indigenous organizations and local governments. At times, these initiatives are part of broader social corporate responsibility policies aimed at attaining a “social license” to operate.

55. Yet contrasting perspectives with regard to benefits reflect different cultural orientations within the development context. Most indigenous peoples and organization responses underscored the adverse effects on their environment, culture and societies, which they said outweighed the minimal or short-term benefits arising out of extractive operations. In this connection, a member of the Pemon people of Venezuela (Bolivarian Republic of) reported that benefits from extractive industries were not a top priority within the community; rather, the group sought “healthy communities, with no infections, in a pollution-free environment”. Similarly, an organization representing the traditional authorities of the Cofan people of Colombia concluded that, in present circumstances,

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“indigenous peoples are left with no option other than to try to find something positive for their communities out of the disaster left behind by the extraction of oil, mineral, and other resources” in their traditional territories.

B. Preliminary assessment

56. The various points of view communicated by indigenous peoples, Governments, business enterprises and other relevant stakeholders concerning natural resource and energy extractive development projects in indigenous territories reveal that, despite a growing awareness of the need to respect the rights of indigenous peoples as an integral part of those projects, many problems remain.

57. The responses to the questionnaire confirm the Special Rapporteur’s perception, derived from the various activities carried out during the first three years of his mandate, that the implementation of natural resource extraction and other development projects on or near indigenous territories has become one of the foremost concerns of indigenous peoples worldwide, and possibly also the most pervasive source of the challenges to the full exercise of their rights. Together with those of indigenous peoples’ organizations and representatives, the responses of many Governments and corporations reflect a clear understanding of the negative and even catastrophic effects on the economic, social and cultural rights of indigenous peoples due to irresponsible or negligent projects that have been or are being implemented in indigenous territories without proper guarantees or the involvement of the peoples concerned.

58. The growing awareness of the actual or potential negative impact of industry operations on the rights of indigenous peoples is further marked by an increasing number of legal regulations and other Government initiatives, as well as by enhanced action by domestic courts and human rights institutions, which were cited in the responses to the Special Rapporteur’s questionnaire. Furthermore, this growing awareness is evident in the development or strengthening by business enterprises of internal human rights safeguards and even of specific indigenous rights policies.

59. The United Nations Declaration on the Rights of Indigenous Peoples and the worldwide endorsement of its principles and directives, the growing empowerment of indigenous peoples to defend their internationally affirmed human rights and denounce the violations of these rights, and the lessons learned from the many negative experiences, within the context of the wider interest of the international community about the impact of business enterprises on human rights are factors that have surely contributed to this enhanced state of awareness.

60. Despite this growing level of awareness, however, the responses to the Special Rapporteur’s questionnaire also show the lack of a minimum shared understanding about the basic implications of accepted international standards or about the institutional arrangements and methodologies required to give them full effect in the context of extractive or development operations that may affect indigenous peoples. In this connection, differing or vague understandings persist about the scope and content of indigenous peoples’ rights and about the degree and nature of the responsibility of the State to ensure the protection of these rights in the context of extractive industries.

61. The current global discussion about the impact of business activities on human rights has reaffirmed that the State has the ultimate international legal responsibility to respect, protect and fulfil human rights. As much is made clear in the “Protect, Respect and Remedy” framework proposed by the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises,10 which was

10 A/HRC/17/31.

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adopted by the Human Rights Council as the basic normative structure for advancing in the protection of human rights in the context of business activities (see paragraph 25 above).

62. While an awareness and express commitment by States to the protection of the rights of indigenous peoples are evident in the many Government responses received to the Special Rapporteur’s questionnaire, these responses, coupled with those received from other sources, also reflect a lack of operative consensus about the extent and means of realization of the State’s duties with regard to resource extraction and development projects.

63. As noted above, several responses, particularly those received from business actors, pointed out that Governments tend to detach from the implementation of consultation procedures and other procedural safeguards for indigenous peoples rights in the context of extractive operations and act as mere regulators. The delegation of the State’s protective role to business enterprises was repeatedly pointed out as a matter of concern, particularly with when there are insufficient or non-existent State regulatory frameworks regarding indigenous rights, including in relation to the protection of lands and resources, consultation and benefit-sharing schemes. The lack of clarity or consensus about the role of the State in protecting the rights of indigenous peoples in this context compounds the uncertainties arising from the differing views about the scope and content of those rights.

64. An additional, significant area of divergent perspectives concerns the balance between costs and benefits of extractive development projects. Even though there is a shared awareness of the past negative effects of extractive activities for indigenous peoples, there are widely divergent perspectives about the incidence and value of benefits from extractive industries, especially into the future. As noted above, many of the Governments’ responses to the questionnaire underscored the key importance of extractive industries for their domestic economies. Many of the responses by business actors shared the view that indigenous peoples could stand to benefit from extractive industries.

65. For their part, indigenous peoples’ responses to the Special Rapporteur’s questionnaire were dominated by a great deal of scepticism and, in many cases, outright rejection, of the possibility of benefiting from extractive or development projects in their traditional territories. The vast majority of indigenous peoples’ responses, many of which stemmed from the direct experience of specific projects affecting their territories and communities, rather emphasized a common perception of disenfranchisement, ignorance of their rights and concerns on the part of States and businesses enterprises, and constant life insecurity in the face of encroaching extractive activities. Such a perception suggests that no apparent positive impact is to be had from these operations, which are seen more as a top-down imposition of decisions taken in a collusion of State and corporate interests than the result of negotiated decisions in which their communities are not directly involved.

66. In the Special Rapporteur’s view, the lack of a minimum common ground for understanding the key issues by all actors concerned entails a major barrier for the effective protection and realization of indigenous peoples’ rights in the context of extractive development projects. The lack of a common understanding among the actors concerned, including States, corporate actors and indigenous peoples themselves, coupled with the existence of numerous grey conceptual and legal areas has invariably proved to be a source of social conflict. Comparative experience, including specific country situations in which the Special Rapporteur has intervened within the framework of his mandate, provide ample examples of the eruption and escalation of these conflicts and the ensuing radicalization of positions. Where social conflicts erupt in connection with extractive or development plans in indigenous territories, everybody loses.

67. The responses to the Special Rapporteur’s questionnaire manifest the need for change in the currents state of affairs if indigenous rights standards are to have a meaningful effect on State and corporate policies and action as they relate to indigenous peoples. An initial step towards such a change is establishing a common ground of

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understanding among indigenous peoples, governmental actors, businesses enterprises and other relevant actors. The Special Rapporteur is conscious of the complexities inherent to any effort to harmonize the various interests involved in context of extractive industries and indigenous peoples, as well as of the difficulties in bridging the contrasting viewpoints that currently exist among the actors concerned.

68. The Special Rapporteur is, however, persuaded of the need to advance towards a minimum common understanding of the content and scope of the rights of indigenous peoples and of the implications of those rights for the future desirability or viability of extractive industries on or near indigenous territories, the nature of the responsibility of States to protect indigenous peoples’ rights in this context, the actual or potential impact of extractive industries – both positive and negative –and related matters. Without a minimum level of common understanding, the application of indigenous rights standards will continue to be contested, indigenous peoples will continue to be vulnerable to serious abuses of their individual and collective human rights, and extractive activities that affect indigenous peoples will continue to face serious social and economic problems.

C. Plan of work

69. In implementing his mandate since his appointment in 2008, the Special Rapporteur has actively pursued his core tasks of monitoring the human rights conditions of indigenous peoples worldwide and of promoting the improvement of those conditions in a spirit of cooperation and responsiveness. In doing so, the Special Rapporteur has been mindful of the directive of the Human Rights Council, namely, that he should place a particular emphasis on the promotion of good practices and technical assistance.

70. The reports submitted by the Special Rapporteur over the past three years tell of the situations in which he has intervened in particular countries in order to promote a clearer understanding of existing problems, as well as to make concrete recommendations to address those problems based on the United Nations Declaration on the Rights of Indigenous Peoples and other relevant international instruments. In the Special Rapporteur’s view, the numerous instances in which he has contributed actively to the process of developing new policies, legislation and constitutional reforms concerning indigenous peoples’ rights, at the request of Governments, international organizations and indigenous peoples are also significant.

71. The effects of the Special Rapporteur’s work has been clearly dependent on the capacity of the actors involved to enter into a principled dialogue in which the Special Rapporteur’s recommendations and proposals may serve as the basis for finding solutions to the identified problems within the framework of the protection of indigenous peoples’ rights. In a number of cases, his recommendations have been at least partially taken into account in the definition of State policies and legislation. The impact of the Special Rapporteur’s thematic analysis of key areas is also discernable in comparative practice, and particularly in a number of recent decisions by domestic courts.11

72. In defining his plan of work for the remainder of his mandate, the Special Rapporteur is guided by a pragmatic approach that seeks to increase the practical effect of his activities within the limitations in which he operates. His experience over the past three years indicates that this can be best achieved by identifying and promoting shared understandings of the basic contents of indigenous peoples’ rights, as well as to provide practical guidance on how to operationalize them.

11 See for example decisions 2878-2007 (21 December 2009) and T-2451120 (3 March 2011) of the

Constitutional Court of Colombia.

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73. As pointed out above, the question of the rights of indigenous peoples in the context of natural resource extraction and development projects has invariably emerged during his activities as a major area of concern and potential human rights abuse. The responses to the Special Rapporteur’s questionnaire, significant both in number and in quality, have provided the Special Rapporteur with a clear indication of the need to continue working in this area.

74. In this respect, the Special Rapporteur believes that an effective way to advance in the fulfilment of his mandate during the years ahead is to focus on the elaboration of a set of guidelines or principles that will provide specific orientation to Governments, indigenous peoples and corporations regarding the protection of indigenous rights in the context of resource extraction or development projects. The need for specific guidelines was underlined in several of the responses to the Special Rapporteur’s questionnaire, particularly those from Governments and several business corporations and associations.

75. The elaboration of a set of guidelines or principles that operationalize the scope and content of the rights of indigenous peoples in the context of development or extractive projects affecting their territories, as well as of the kind of institutional measures required to guarantee the enjoyment of those rights in this context, is fully consistent with the particular emphasis that the Special Rapporteur’s mandate places on the promotion of best practices and the provision of technical assistance to Governments.

76. Moreover, this line of action is directly connected to the kind of operational measures required by the guiding principles on business and human rights within the “Protect, Respect and Remedy” framework recently endorsed by the Human Rights Council in its resolution 17/4. The guiding principles specify that States, as part of their duty to protect human rights in the context of business enterprises, should “enforce laws that are aimed at, or have the effect of, requiring business enterprises to respect human rights” while also providing “effective guidance to corporate actors” on how to respect human rights throughout their operations.12

77. In his commentaries to these principles, the Special Representative of the Secretary- General emphasized that the fulfilment of State’s duties in this context requires greater clarity in some areas of law and policy, such as those governing access to land, including entitlements in relation to ownership or use of land.13 Furthermore, he noted the need for States to provide “clear guidance to business enterprises on respecting human rights”, including methods to enhance human rights due diligence that recognize the “specific challenges that may be faced by indigenous peoples”.

78. Working towards the operationalization of indigenous peoples rights and of the institutional safeguard required to make them effective in the context of natural resource extraction or development projects could constitute, in the Special Rapporteur’s view, a useful tool in the hands of indigenous peoples and Governments when they define more effective legal frameworks and policies in this area, and also to provide guidance to corporate actors in this regard.

79. While continuing to work in the fulfilment of all the areas of work defined by his mandate, the Special Rapporteur’s work towards the operationalization of indigenous peoples’ rights in the context of extractive projects will require a rerouting of significant efforts and of human and material resources. As stated above, the Special Rapporteur considers of utmost importance the bridging of the divergent viewpoints of States, indigenous peoples and corporate actors in this regard, which necessarily entails the opening of a process of wide consultations and dialogue with all the actors concerned. Expert consultations and studies on specific areas will also be required to promote an

12 A/HRC/17/31, annex, principles 3(a)-(c). 13 Ibid., principle 8.

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understanding of indigenous peoples’ rights that is effective and practicable within the domestic policy frameworks and business practices in which these projects are implemented.

80. Many debates will ensue, and are surely required, concerning the existing extractive model and its broader social and environmental impact. In the meantime, indigenous peoples will continue to be vulnerable to human rights abuse, which erodes the basis of their self-determination and, in some cases, endangers their very existence as distinct peoples. In this connection, the Special Rapporteur fully adheres to the kind of “principled pragmatism” assumed by the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises: “an unflinching commitment to the principle of strengthening the promotion and protection of human rights as it relates to business, coupled with a pragmatic attachment to what works best in creating change where it matters most – in the daily lives of people.”14

IV. Conclusions and recommendations

81. The Special Rapporteur gratefully acknowledges the continuous support of States, indigenous peoples, international organizations and bodies, business enterprises and other civil society actors in fulfilling his mandate. In particular, he expresses his gratitude to the reaffirmation of the trust vested in him by the Human Rights Council, as shown by the renewal of his mandate in May 2011 for an additional period of three years.

82. On the basis of the experience gained during the first term of his mandate, the Special Rapporteur has come to identity natural resource extraction and other major development projects in or near indigenous territories as one of the most significant sources of abuse of the rights of indigenous peoples worldwide. In its prevailing form, the model for advancing with natural resource extraction within the territories of indigenous peoples appears to run counter to the self-determination of indigenous peoples in the political, social and economic spheres.

83. The many responses received from Governments, indigenous peoples and organizations, business corporations and other actors to the questionnaire distributed by the Special Rapporteur in 2011 point to a state of shared awareness and concern about the past negative effects of extractive operations for indigenous peoples in many situations, in the light of the particular attachment of indigenous peoples to their traditional lands, territories and natural resources. However, the responses to the questionnaire also provide a strong indication of the existence of conflicting points of view concerning the potential adverse impact and benefits of extractive or development projects in indigenous territories; the practical implications in this context of international standards affirming the rights of indigenous peoples, and the kind of measures required to fulfil the responsibilities of States, corporate actors and indigenous peoples themselves.

84. In this connection, while the existing problems and challenges ahead are significant and complex, the Special Rapporteur is encouraged by what he perceives to be a growing degree of awareness and assumption of responsibility on the part of States and corporate actors. This growing awareness opens a historical opportunity for advancing towards a common normative understanding and the operationalization of indigenous peoples’ rights and related institutional safeguards in the context of natural resource extraction and development projects in indigenous territories. This process would not only contribute to enhanced implementation of the

14 E/CN.4/2006/97, para. 81.

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standards affirmed in the United Nations Declaration on the Rights of Indigenous Peoples and other international instruments, but also to operationalizing and realizing the “Protect, Respect and Remedy” framework.

85. The responses received to the Special Rapporteur’s questionnaire reveal a number of State legal and institutional frameworks, domestic court decisions, business internal policies and pilot projects that address or are relevant to indigenous peoples’ rights in the context of extractive industries. In the opinion of the Special Rapporteur, these various initiatives deserve careful consideration and may provide useful guidance when devising effective models for securing the rights of indigenous peoples in the extractive projects affecting them.

86. The Special Rapporteur considers that his mandate is well placed within the wider United Nations human rights system to promote the operationalization of indigenous peoples’ rights and related institutional guarantees in the context of resource extraction and development operations, in a manner that builds on the work of the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises. This effort could be pursued through the development of specific guidelines or principles aimed at helping States, corporate actors and indigenous peoples in fulfilling the responsibilities that arise from international indigenous rights standards. In the Special Rapporteur’s view, this task is entirely within and will significantly contribute to the fulfilment of his mandate to examine ways and means of overcoming existing obstacles to the full and effective protection of the rights of indigenous peoples and to identify, exchange and promote best practices.15

87. Advancing in the development of such guidelines requires a broadly encompassing dialogue with Governments, indigenous peoples’ organizations, corporate actors, international institutions and other relevant stakeholders, in which consensus-building is a key element. In order to advance towards this goal, the Special Rapporteur has incorporated as a top priority for the second term of his mandate the realization of consultations with stakeholders, the exchange of best practices and the undertaking of specific expert studies in relation to indigenous peoples and extractive industries.

88. In undertaking this course of action, the Special Rapporteur expects to count on, as he has done in the past, the active support of all actors concerns. Furthermore, his work towards the operationalization of indigenous peoples’ rights can benefit from and contribute to ongoing initiatives of the Permanent Forum on Indigenous Issues and the Expert Mechanism on the Rights of Indigenous Peoples, with which the Special Rapporteur has established relations of cooperation in fulfilment of his mandate.

89. In view of the above, when considering the Special Rapporteur’s future action, the Human Rights Council may wish to entrust him with the specific task of working towards the operationalization of the rights of indigenous peoples and related institutional guarantees in the context of natural resource extraction and development projects affecting indigenous territories, with the aim of his presenting to the Council a set of specific guidelines or principles in 2013. The Council may further consider the necessity of affording additional support to the Special Rapporteur in performing this task.

15 Human Rights Council resolution 15/14, para. 1 (a).

Beijing Declaration Adopted by the WHO Congress on Traditional Medicine, Beijing, China, 8 November 2008

Participants at the World Health Organization Congress on Traditional Medicine, meeting in Beijing this eighth day of November in the year two thousand and eight;

Recalling the International Conference on Primary Health Care at Alma Ata thirty years ago and noting that people have the right and duty to participate individually and collectively in the planning and implementation of their health care, which may include access to traditional medicine; Recalling World Health Assembly resolutions promoting traditional medicine, including WHA56.31 on Traditional Medicine of May 2003; Noting that the term "traditional medicine" covers a wide variety of therapies and practices which may vary greatly from country to country and from region to region, and that traditional medicine may also be referred to as alternative or complementary medicine;

Recognizing traditional medicine as one of the resources of primary health care services to increase availability and affordability and to contribute to improve health outcomes including those mentioned in the Millennium Development Goals; Recognizing that Member States have different domestic legislation, approaches, regulatory responsibilities and delivery models; Noting that progress in the field of traditional medicine has been obtained in a number of Member States through implementation of the WHO Traditional Medicine Strategy 2002-2005; Expressing the need for action and cooperation by the international community, governments, and health professionals and workers, to ensure proper use of traditional medicine as an important component contributing to the health of all people, in accordance with national capacity, priorities and relevant legislation;

In accordance with national capacities, priorities, relevant legislation and circumstances, hereby make the following Declaration: I. The knowledge of traditional medicine, treatments and practices should be respected, preserved, promoted and

communicated widely and appropriately based on the circumstances in each country. II. Governments have a responsibility for the health of their people and should formulate national policies, regulations and

standards, as part of comprehensive national health systems to ensure appropriate, safe and effective use of traditional medicine.

III. Recognizing the progress of many governments to date in integrating traditional medicine into their national health

systems, we call on those who have not yet done so to take action. IV. Traditional medicine should be further developed based on research and innovation in line with the "Global strategy

and plan of action on public health, innovation and intellectual property" adopted at the Sixty-first World Health Assembly in resolution WHA61.21 in 2008. Governments, international organizations and other stakeholders should collaborate in implementing the global strategy and plan of action.

V. Governments should establish systems for the qualification, accreditation or licensing of traditional medicine

practitioners. Traditional medicine practitioners should upgrade their knowledge and skills based on national requirements.

VI. The communication between conventional and traditional medicine providers should be strengthened and appropriate

training programmes be established for health professionals, medical students and relevant researchers.

Published by the United Nations

07-58681—March 2008—4,000

United Nations Declaration on the rights of inDigenous PeoPles

United Nations Declaration on the rights of inDigenous PeoPles

United Nations

United Nations

United Nations Declaration on the Rights of Indigenous Peoples

1

Resolution adopted by the General Assembly

[without reference to a Main Committee (A/61/L.67 and Add.1)]

61/295. United Nations Declaration on the Rights of Indigenous Peoples

The General Assembly,

Taking note of the recommendation of the Human Rights Coun-cil contained in its resolution 1/2 of 29 June 2006,1 by which the Council adopted the text of the United Nations Declaration on the Rights of Indigenous Peoples,

Recalling its resolution 61/178 of 20 December 2006, by which it decided to defer consideration of and action on the Declaration to allow time for further consultations thereon, and also decided to conclude its consideration before the end of the sixty-first session of the General Assembly,

Adopts the United Nations Declaration on the Rights of Indigenous Peoples as contained in the annex to the present resolution.

107th plenary meeting 13 September 2007

Annex

United Nations Declaration on the Rights of Indigenous Peoples

The General Assembly,

Guided by the purposes and principles of the Charter of the United Nations, and good faith in the fulfilment of the obligations assumed by States in accordance with the Charter,

Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such,

1.See Official Records of the General Assembly, Sixty-first Session, Supplement No. 53 (A/61/53), part one, chap. II, sect. A.

2

Affirming also that all peoples contribute to the diversity and rich-ness of civilizations and cultures, which constitute the common heri-tage of humankind,

Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust,

Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind,

Concerned that indigenous peoples have suffered from historic injus-tices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,

Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, eco-nomic and social structures and from their cultures, spiritual tradi-tions, histories and philosophies, especially their rights to their lands, territories and resources,

Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States,

Welcoming the fact that indigenous peoples are organizing them-selves for political, economic, social and cultural enhancement and in order to bring to an end all forms of discrimination and oppres-sion wherever they occur,

Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and tra-ditions, and to promote their development in accordance with their aspirations and needs,

Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable devel-opment and proper management of the environment,

Emphasizing the contribution of the demilitarization of the lands and territories of indigenous peoples to peace, economic and social

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progress and development, understanding and friendly relations among nations and peoples of the world,

Recognizing in particular the right of indigenous families and com-munities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child,

Considering that the rights affirmed in treaties, agreements and other constructive arrangements between States and indigenous peoples are, in some situations, matters of international concern, interest, responsibility and character,

Considering also that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States,

Acknowledging that the Charter of the United Nations, the Interna-tional Covenant on Economic, Social and Cultural Rights2 and the International Covenant on Civil and Political Rights,2 as well as the Vienna Declaration and Programme of Action,3 affirm the funda-mental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development,

Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in con-formity with international law,

Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative rela-tions between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith,

Encouraging States to comply with and effectively implement all their obligations as they apply to indigenous peoples under inter-national instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned,

Emphasizing that the United Nations has an important and continu-ing role to play in promoting and protecting the rights of indig-enous peoples,

2.See resolution 2200 A (XXI), annex.3.A/CONF.157/24 (Part I), chap. III.

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Believing that this Declaration is a further important step forward for the recognition, promotion and protection of the rights and freedoms of indigenous peoples and in the development of relevant activities of the United Nations system in this field,

Recognizing and reaffirming that indigenous individuals are enti-tled without discrimination to all human rights recognized in inter-national law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples,

Recognizing that the situation of indigenous peoples varies from region to region and from country to country and that the signifi-cance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration,

Solemnly proclaims the following United Nations Declaration on the Rights of Indigenous Peoples as a standard of achievement to be pursued in a spirit of partnership and mutual respect:

Article 1Indigenous peoples have the right to the full enjoyment, as a collec-tive or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights4 and international human rights law.

Article 2Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.

Article 3Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to

4.Resolution 217 A (III).

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their internal and local affairs, as well as ways and means for financ-ing their autonomous functions.

Article 5Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 6Every indigenous individual has the right to a nationality.

Article 71. Indigenous individuals have the rights to life, physical and men-tal integrity, liberty and security of person.

2. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

Article 81. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

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Article 9Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimina-tion of any kind may arise from the exercise of such a right.

Article 10Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 111. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.

2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spir-itual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 121. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and cer-emonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.

2. States shall seek to enable the access and/or repatriation of cer-emonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

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Article 131. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral tradi-tions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.

2. States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.

Article 141. Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.

2. Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimina-tion.

3. States shall, in conjunction with indigenous peoples, take effec-tive measures, in order for indigenous individuals, particularly chil-dren, including those living outside their communities, to have access, when possible, to an education in their own culture and pro-vided in their own language.

Article 151. Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information.

2. States shall take effective measures, in consultation and coopera-tion with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understand-ing and good relations among indigenous peoples and all other seg-ments of society.

Article 161. Indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination.

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2. States shall take effective measures to ensure that State-owned media duly reflect indigenous cultural diversity. States, without prejudice to ensuring full freedom of expression, should encour-age privately owned media to adequately reflect indigenous cultural diversity.

Article 171. Indigenous individuals and peoples have the right to enjoy fully all rights established under applicable international and domestic labour law.

2. States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development, taking into account their special vulnerability and the importance of education for their empowerment.

3. Indigenous individuals have the right not to be subjected to any discriminatory conditions of labour and, inter alia, employment or salary.

Article 18Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision- making institutions.

Article 19States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopt-ing and implementing legislative or administrative measures that may affect them.

Article 201. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and develop-ment, and to engage freely in all their traditional and other eco-nomic activities.

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2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.

Article 211. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.

2. States shall take effective measures and, where appropriate, spe-cial measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.

Article 221. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with dis-abilities in the implementation of this Declaration.

2. States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.

Article 23Indigenous peoples have the right to determine and develop pri-orities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.

Article 24

1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals. Indigenous indi-viduals also have the right to access, without any discrimination, to all social and health services.

2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.

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Article 25Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 261. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or other-wise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by rea-son of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27States shall establish and implement, in conjunction with indige-nous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 281. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equita-ble compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources

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equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 291. Indigenous peoples have the right to the conservation and pro-tection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.

2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or ter-ritories of indigenous peoples without their free, prior and informed consent.

3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.

Article 301. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.

2. States shall undertake effective consultations with the indig-enous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.

Article 311. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and tra-ditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

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2. In conjunction with indigenous peoples, States shall take effec-tive measures to recognize and protect the exercise of these rights.

Article 321. 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.

2. States shall consult and cooperate in good faith with the indig-enous peoples concerned through their own representative institu-tions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utiliza-tion or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiri-tual impact.

Article 331. Indigenous peoples have the right to determine their own iden-tity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.

2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

Article 34Indigenous peoples have the right to promote, develop and main-tain their institutional structures and their distinctive customs, spiri-tuality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

Article 35Indigenous peoples have the right to determine the responsibilities of individuals to their communities.

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Article 361. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.

2. States, in consultation and cooperation with indigenous peo-ples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.

Article 371. Indigenous peoples have the right to the recognition, observ-ance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other con-structive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.

Article 38States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.

Article 39Indigenous peoples have the right to have access to financial and technical assistance from States and through international coopera-tion, for the enjoyment of the rights contained in this Declaration.

Article 40Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.

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Article 41The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobiliza-tion, inter alia, of financial cooperation and technical assistance. Ways and means of ensuring participation of indigenous peoples on issues affecting them shall be established.

Article 42The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the coun-try level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.

Article 43

The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.

Article 44All the rights and freedoms recognized herein are equally guaran-teed to male and female indigenous individuals.

Article 45Nothing in this Declaration may be construed as diminishing or extinguishing the rights indigenous peoples have now or may acquire in the future.

Article 461. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

2. In the exercise of the rights enunciated in the present Dec-laration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law

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and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.

3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.