Transcript Office of the United Nations High Commissioner for Human Rights Expert Mechanism on the Rights of Indigenous Peoples.

Office of the United Nations High Commissioner for
Human Rights
Expert Mechanism on the
Rights of Indigenous Peoples
Outline
 Background to the Expert Mechanism
 Placement of the Expert Mechanism within the UN’s human
rights system
 Mandate of the Expert Mechanism: HRC Resolution 6/36
 Composition of the Expert Mechanism
 Sessions of the Expert Mechanism
 Expert Mechanism Study on Education
 Expert Mechanism Study on Participation
 Relevance of the Expert Mechanism’s studies to the ESCR
Committee’s jurisprudence
 Where to find further information
Background to the Expert Mechanism on the
Rights of Indigenous Peoples
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1982: Working Group on Indigenous Populations (WGIP)
1985: Drafting of the declaration began in the WGIP
1993: WGIP draft of declaration finalised
1994: Sub-Commission approved the WGIP draft declaration, submitted to the
Commission on Human Rights
 1995 - 2006: Commission on Human Rights established the Working Group on
the draft declaration in 1995
 2006:
 Dissolution of the Commission on Human Rights (including subsidiary bodies
such as the WGIP) and replacement with the Human Rights Council (HRC)
 Approval of Declaration at the HRC (June 2006)
 2007:
 Agreement on the structure of the HRC and its subsidiary bodies: Expert
Mechanism on the Rights of Indigenous Peoples established
 Adoption of the Declaration on the Rights of Indigenous Peoples in the
General Assembly (Sept 2007)
Place within the UN human rights system
ECOSOC
PFII
General Assembly
Human Rights
Commission
03/04/06
Human Rights Council GA Resolution 60/251
29/06/06
Special
Rapporteur
HRC – UN
Declaration
Working Group on
the Draft
Declaration
Renewal of
the SR
GA adoption
of the
Declaration
13/09/07
HRC Resolution
9/7
HRC Resolution
12/13
Sept.2009
24/09/08
28/09/07
SubCommission
Working Group on
Indigenous
Populations
GA resolution
63/161 VFIP
mandate
Resolution
6/16
Informal
meeting
28/09/07
18/06/06
Institutional
building (HRC
Resolution 5/1)
6-7/12/07
Expert
Mechanism on
the Rights of
Indigenous
Peoples
HRC Resolution
6/36
First session
1-3/10/08
Second session
10-14/08/09
Third session
12-16 July 2010
14/12/07
Mandate
Resolution 6/36
1. Decides, in order to assist
the Human Rights Council in
the implementation of its
mandate, to establish a
subsidiary expert
mechanism to provide the
Council with thematic
expertise on the rights of
indigenous peoples in the
manner and form requested
by the Council:
 Assistance for the
implementation of the
Council’s mandate
 Advisory function
 Human Rights Council
requests manner and form
Mandate
 (a) The thematic expertise
will focus mainly on studies
and research-based advice;
 (b) The mechanism may
suggest proposals to the
Council for its consideration
and approval, within the
scope of its work as set out
by the Council;
 Expertise mainly through
studies and research-based
advice
 Proposals – but must seek
the approval of the Human
Rights Council
 Human Rights Council
requests:
 Education (2008): Res 9/7
 Right to participate in
decision making (2009 –
2010): Res 12/13
 Cultures and languages
(2011): Res 18/8
Reporting to the Council
2. Also decides that this
mechanism shall report
annually to the Council on
its work;
 Formal presentation at the 10th
(2008), 12th (2009), 15th (2010)
and 18th (2011) sessions of the
Human Rights Council
 New: interactive dialogue (18th
session), available live on the
Human Rights Council’s webcast
(http://www.un.org/webcast/unh
rc/)
 Reports at the same time as the
Special Rapporteur on the rights
of indigenous peoples
Composition
Human Rights Council Resolution
6/36 (2007)
 3. Further decides that the
expert mechanism shall consist
of five independent experts
 4. Strongly recommends that,
in the selection and
appointment process, the
Council give due regard to
experts of indigenous origin;
 6. Also decides that the
members of the expert
mechanism shall serve for a
three-year period and may be
re-elected for one additional
period;
Experts (2008-2011)
John Henriksen (Norway)
Jannie Lasimbang (Malaysia)
José Mencio Molintas (Philippines)
José Carlos Morales Morales (Costa
Rica)
Catherine Odimba (Democratic
Republic of Congo)
2011
Vital Bambanze (Burundi): 1 yr (Chair
2011)
Anastasia Chukhman (Russian Fed): 2 yrs
Jannie Lasimbang (Malaysia): 3 yrs
Wilton Littlechild (Canada): 3 yrs
José Carlos Morales Morales (Costa Rica):
2 yrs
Coordination
5. Decides, in order for the expert
mechanism to enhance
cooperation and avoid duplicating
the work of the Special
Rapporteur on the situation of
human rights and fundamental
freedoms of indigenous people
and the Permanent Forum, that it
shall invite the Special Rapporteur
and a member of the Permanent
Forum to attend and contribute to
its annual meeting;
 Close coordination between
indigenous mandates and
respective secretariats
 Cooperation includes:
 attendance at respective sessions
(eg EM and SR at the PFII and vice
versa)
 Annual coordination meetings
 Declaration on the Rights of
Indigenous Peoples is a common
framework, under article 42 of the
Declaration
Distinctions between the Indigenous Mandates
 Expert Mechanism
 Thematic advice to the Human Rights Council
 Special Rapporteur on the rights of indigenous peoples
 Examines obstacles to the protection of indigenous peoples’
rights, gathers information and communications, formulates
recommendations and works with other mandates such as
the Expert Mechanism
 Conducts country visits, responds to communications and
undertakes thematic studies
 Permanent Forum on Indigenous Issues
 Advises the Economic and Social Council, raises awareness
and promotes integration and coordination of activities on
indigenous issues within the UN system and prepares and
disseminates information on indigenous issues
Annual sessions
The Expert Mechanism meets
annually
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in Geneva
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usually in July
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for 5 days
Indigenous peoples, states, nonstate actors, academia, national
human rights institutions and
others attend
Participation in the Expert Mechanism
Expert Mechanism studies
 Based on:
 Research undertaken by experts, including an analysis of relevant
jurisprudence from the UN human rights treaty bodies
 Submissions during sessions of the Expert Mechanism
 Expert seminars
 Contributions from:
 States
 Indigenous peoples – individuals and representatives of indigenous
peoples
 Academic institutions
 National human rights institutions
 Non-state actors
Education Study
 Recognition of education as a basic human right – generally and
specifically in relation to indigenous peoples: review of relevant
human rights standards, including under the Declaration on the
Rights of Indigenous Peoples
 Indigenous peoples’ education contributes to both individual and
community development
 Education is an important means for the enjoyment, maintenance
and respect of indigenous cultures, languages, traditions and
traditional knowledge
 Form and substance of education have to be culturally appropriate
and acceptable to indigenous peoples
Education Study
 Education is an indispensible means of realising indigenous
peoples’ right to self-determination
 Indigenous education includes:
 Traditional education or ways of learning and institutions
 Integration of indigenous perspectives and language in
mainstream education systems and institutions
 Indigenous peoples have the right to establish and control
their education systems and institutions
Education Study
 Lessons learned:
 Constitutional recognition of indigenous peoples and the
adoption of related national laws and policies on
education is considered a priority in the application of the
right of indigenous peoples to education
 The provision of resources and attaching a high priority to
the education of indigenous peoples are of utmost
importance
Education Study
 Challenges and measures include:
 Lack of control over education initiatives for indigenous children
 Lack of consultation on the development and implementation of
educational services provided to indigenous peoples
 Limited consideration given to autonomy and participation of
indigenous peoples in the delivery of educational services
 The imposition of mainstream education on indigenous children
Advice on the Rights of Indigenous Peoples to
Education
 The right of indigenous peoples to education includes the right to
provide and receive education through their traditional methods
of teaching and learning, and the right to integrate their own
perspectives, cultures, beliefs, values and languages in
mainstream education systems and institutions
 Governments are urged to attach importance to building
understanding and respect for traditional methods of teaching and
learning
 Indigenous peoples, in exercising their right to self-determination,
have the right to education autonomy
Advice on the Rights of Indigenous Peoples to
Education
 Indigenous peoples should be regarded as having prepaid present
and future financial allocations from the State, including
allocations to education, by sharing their lands, territories and
resources with others
 The right of indigenous peoples to educational autonomy includes
the right to decide their own educational priorities and to
participate effectively in the formulation, implementation and
evaluation of education plans, programmes and services that may
affect them, as well as the right to establish and control their own
education systems and institutions, if they so choose
Expert Mechanism’s reliance on ESCR Cttee and
the ICESCR
 Many references to the work of the ESCR Cttee on
education including:
 That education should be for all
 That a state party will not be fulfil its obligations under the
ICESCR when any significant number of individuals are
deprived of «the most basic forms of education»
 The relationship between articles in the Declaration on
the Rights of Indigenous Peoples and the right to
education in the ICESCR: Declaration applies ICESCR rights
to the specific situations of indigenous peoples
Participation Study: Progress Report
 The principle of participation in decision making has a clear
relationship with the right of indigenous peoples to selfdetermination, including the right to autonomy or selfgovernment, and the State obligation to consult indigenous
peoples in matters that may affect them, based on the principle of
free, prior and informed consent.
Participation Study: Progress Report
 Examination of the human rights framework on the right to
participate in decision making generally and specifically in
relation to indigenous peoples, including under human rights
treaties, ILO Convention No 169 on Indigenous and Tribal
Peoples, the Declaration on the Rights of Indigenous Peoples and
regional instruments and jurisprudence (eg Inter-American and
African human rights systems)
 The right has collective and individual dimensions
 Requirements of consultation with and, in some cases, the
consent of indigenous peoples under international standards
Participation Study: Progress Report
 Self-determination means that the institutions of
decision making should be devised to enable indigenous
peoples to make decisions related to their internal and
local affairs, and to participate collectively in external
decision-making processes in accordance with relevant
human rights standards
Participation Study: Progress Report
 Free, prior and informed consent:
 Consistent jurisprudence from treaties and from human rights treaty
bodies cited
 Internal decision-making processes of indigenous peoples:
 Guided by traditional indigenous legal systems
 Can include adjudication and dispute-resolution procedures
 Pressures from influence of contemporary structures of decisionmaking
 Details about indigenous parliaments and organisations, indigenous
legal systems, the role of women in decision making
Participation Study: Progress Report
 Transformation and challenges of indigenous governance
 Forced adaptation of traditional decision-making
 Failures to include indigenous women in decision making in some
communities
 Participation in «external» decision making processes
 Sometimes indigenous peoples are in the minority, meaning the
majority can outvote them
 Sometimes special measures guarantee seats for indigenous in
parliaments, sometimes not
 Sometimes indigenous autonomous regions are recognised
Participation Report: Final Study
 Internal decision-making: good practices
 Generally internal decision making facilitates the
participation of indigenous peoples and individuals in
public affairs in ways that are philosophically and culturally
consistent with indigenous peoples’ understanding of
governance
Participation Report: Final Study
 Participation in external decision-making processes
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guaranteed representation of indigenous peoples in Parliaments
institutions permitting direct indigenous participation in governance
consultation with indigenous peoples on matters that affect them
shared governance with state bodies
examples of consultation and consent seeking of indigenous peoples
participation in regional and international forums and processes
enhanced participation of indigenous peoples in national human
rights institutions
Advice No 2 on Participation in Decision Making
 Indigenous peoples’ right to participate in decision making is a
substantive as well as a procedural right
 Consultations with indigenous peoples need to allow for the full
expression of indigenous peoples’ views, in a timely manner and
based on their full understanding of the issues involved, so that
they may be able to affect the outcome and consensus may be
achieved
 Consultations also need to be undertaken in good faith, mutual
trust and transparency, allowing indigenous peoples sufficient
time to engage their own decision-making processes and the
objective should be to achieve agreement or consensus
Advice No 2 on Participation in Decision Making
 The duty to consult applies whenever a measure or decision
specifically affecting indigenous peoples is being considered (for
example, affecting their lands or livelihood)
 The duty also applies in situations where the State considers
decisions or measures that potentially affect the wider society,
but which affect indigenous peoples, and in particular in instances
where decisions have a disproportionately significant effect on
indigenous peoples
 Indigenous peoples have the right to develop and maintain their
own decision making institutions and authority parallel to their
right to participate in external decision making processes that
affect them
Advice No 2 on Participation in Decision Making
 Consent required in matters of fundamental importance for
indigenous peoples’ rights, survival, dignity and well-being
 In assessing whether a matter is of importance to the indigenous
peoples concerned, relevant factors include the perspective and
priorities of the indigenous peoples concerned, the nature of the
matter or proposed activity and its potential impact on the
indigenous peoples concerned, taking into account, inter alia, the
cumulative effects of previous encroachments or activities and
the historical inequities faced by the indigenous peoples
concerned
Advice No 2 on Participation in Decison Making
 «free» implies no coercion, intimidation or manipulation;
 «prior» implies that consent is obtained in advance of the activity
associated with the decisions being made, and includes the time
necessary to allow indigenous peoples to undertake their own decisionmaking processes;
 «informed» implies that indigenous peoples have been provided all
information relating to the activity and that that information is
objective, accurate and presented in a manner and form that is
understandable to indigenous peoples; and
 «consent» implies that indigenous peoples have agreed to the activity
that is the subject of the relevant decision, which may also be subject to
conditions
Expert Mechanism’s reliance on ESCR Cttee and
the ICESCR
 ICESCR affirms the right to participate in the economic, social and
cultural life of the State… . the Committee on Economic, Social and
Cultural Rights emphasized that the principle of non-discrimination
and equality, as articulated in article 2 (2) and reflected throughout
the Covenant, applies to all the rights contained in the Convention,
 Self-determination is included in article 1 of the Covenants
 Reliance on General Comment No 21 and reference to free, prior
and informed consent, and also concluding observations of the
ESCR Committee
Resolution 18/8 (Sept 2011)
 Next study: cultures and languages
 Request to continue to build on previous studies, including on
participation
 Undertake a questionnaire survey to seek the views of States on
best practices regarding the possible appropriate measures and
implementation strategies to attain the goals of the Declaration
 Discuss the World Conference on Indigenous Peoples to
contribute the exploration of the modalities of the meeting,
including indigenous peoples’ participation at the Conference
and its preparatory process
Relationship to the ESCR
Committee
 Consistent approaches to the interpretation of rights,
for example the right to education and the right to take
part in cultural life
 Expert Mechanism studies provide detail on how
economic, social and cultural rights apply to situations
facing indigenous peoples, relevant to monitoring of
states’ compliance with the CESCR and individual
communications
«Added Value» of Expert Mechanism studies in
the jurisprudence of the ESCR Committee
 Consistent messages from across the UN system, thus
illustrating coordination (responding to issues associated with
fragmentation)
 Expert Mechanism’s Advice is based on
 significant research, often collating the jurisprudence from all
relevant human rights bodies, including from the regional human
rights systems
 Is the subject of deliberations between states, indigenous peoples,
civil society, national human rights institutions and academics,
especially during its annual sessions
Expert Mechanism’s study on education and
ESCR Jurisprudence
 The Expert Mechanism’s study reads indigenous
peoples’ education rights in the light of indigenous
peoples’ right to self-determination (including in Article
1 of the International Covenant on Economic, Social and
Cultural Rights)
 Expert Mechanism Study is consistent with the ESCR
Committee’s General Comment that education should
be culturally appropriate and «adapt to the needs of
changing societies and communities»
Expert Mechanism’s study on participation and
ESCR Committee General Comment on Cultural
Life (article 15(1)(a)
 ESCR Committee General Comment: «States parties should
respect the principle of free, prior and informed consent of
indigenous peoples in all matters covered by their specific rights»
 Expert Mechanism: Consent required in matters of fundamental
importance for indigenous peoples’ rights, survival, dignity and
well-being. Relevant factors in assessment include the
perspective and priorities of the indigenous peoples concerned,
the nature of the matter or proposed activity and its potential
impact on the indigenous peoples concerned, taking into account,
inter alia, the cumulative effects of previous encroachments or
activities and the historical inequities faced by the indigenous
peoples concerned
Expert Mechanism’s study on participation and
ESCR Committee General Comment on Cultural
Life (article 15(1)(a)
 The Expert Mechanism’s study on indigenous peoples
and the right to participate in decision making also
includes «best practices», which may assist the ESCR
Committee when monitoring states, including how to
enhance the participation of indigenous peoples in
decision making
Questions?
 How might the Expert Mechanism assist the ESCR
Committee in its work?
More information
 Website of the Expert Mechanism:
 http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/E
MRIPIndex.aspx
 Website of the OHCHR on indigenous peoples:
 http://www2.ohchr.org/english/issues/indigenous/index.h
tm