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Statements Special Procedures
20 September 2016
20 September 2016
Distinguished delegates, Indigenous Peoples’ Representatives
Ladies and gentlemen,
I have the honor to present today my third annual report to the Human Rights Council. I would like to start by expressing my gratitude to the numerous States, indigenous peoples, and others, and in particular to the Office of the High Commissioner for Human Rights, for the support they have provided as I have carried out my mandate over the past year, as I begin my third as the Special Rapporteur.
Each year since my appointment as the Special Rapporteur on the rights of indigenous peoples has been historic for indigenous peoples. In 2014, I addressed the Council a few days before the first World Conference on indigenous issues. The Conference culminated in the adoption of an Outcome Document which reaffirmed States’ commitment to the United Nations Declaration on the Rights of Indigenous Peoples. 2015 was the year in which negotiations for the post-2015 development agenda and a new agreement under the UN Framework Convention on Climate Change were finalized. This year marked negotiations to strengthen the mandate of the Expert Mechanism on the Rights of Indigenous Peoples and discussions regarding participation of indigenous peoples with a differentiated status in the General Assembly. Next year, we will celebrate the tenth Anniversary of the adoption Declaration in the General Assembly. Closing the gap between the recognition of indigenous peoples’ rights at the international and national levels and the actual implementation on the ground remains my main pre-occupation and I reiterate my commitment in my role as Special Rapporteur to monitor closely how the member States and the United Nations are implementing the Declaration and the Outcome Document.
Areas of work
While seeking to cooperate as appropriate with relevant international mechanisms and institutions, I have engaged in a range of activities within my mandate. The various activities I have carried out can be described as falling within four, interrelated areas of work. These are promoting good practices; thematic studies; country reports; and responding to cases of alleged human rights violations. In this presentation to the Council, I will focus on my thematic studies and my three country visit reports from the past year.
As you know, a core aspect of my mandate is to examine ways and means of overcoming existing obstacles to the full and effective protection of the rights of indigenous peoples and to formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations of the rights of indigenous peoples. As I have mentioned in numerous statements and reports, I have focused my efforts particularly on issues surrounding the economic, social, cultural and environmental rights of indigenous peoples.
Ladies and gentlemen,
The thematic report I am presenting today is the second of three reports that I dedicate to international investment agreements and their impacts on indigenous peoples’ rights. Previous Special Rapporteurs have addressed the impact of large scale development projects and investment plans on indigenous peoples. However, this project level focus did not extend to addressing structural constraints that arise as a result of the international investment law regime which facilitates these projects and investments. My 2015 report (A/70/301) to the UN General Assembly sought to address the impact of the international investment regime in the context of indigenous peoples’ rights. My current report to the Human Rights Council further contextualizes and examines these impacts and presents a number of recommendations aimed at guiding Member States, the United Nations system and the actors involved in the international investment law regime. It seeks to promote coherence across International Investment Law and International Human Rights Law and to ensure that State fulfilment of duties pertaining to the rights of indigenous peoples is not obstructed by protections afforded to investors.
My research reveals an alarming and growing number of cases where foreign investment in the mining, oil and gas, hydroelectric and agribusiness sectors is resulting in serious violations of indigenous peoples’ land, self-governance and cultural rights. The legal vacuum arising from the lack of recognition or enforcement of indigenous peoples’ land rights is facilitating arbitrary land expropriation for such investment projects. The vast majority of these lands are then protected under International Investment Agreements. Related investor state dispute settlement (ISDS) claims are expected in Africa and Asia in agribusiness and extractive sectors. In the Americas a growing number of ISDS claims already exist in relation to such activities in or near indigenous territories. In such contexts, international investment agreements can and do compound, contribute to, and exacerbate the serious impacts of investment projects on indigenous peoples’ rights.
This arises as a result of three interrelated issues: a) the failure to adequately address human rights in the preambles and substantive provisions of International Investment Agreements; b) actual or perceived threat of enforcement of investor protections under ISDS arbitration, leading to regulatory chill; c) the exclusion of indigenous peoples from drafting, negotiation and approval processes of Indigenous Investment Agreements and from the settlement of disputes that arise in relation to investor protections under these agreements.
In the past most States failed to address indigenous peoples’ rights in their arguments before ISDS tribunals. However, this appears to be changing with indigenous peoples’ consultation and FPIC rights increasingly emphasised in State arguments. This development points to the potential synergy between protecting indigenous peoples’ rights, maintaining sovereignty over natural resources, and reducing the risk of potentially costly suits in such contexts. These cases also raise important issues regarding the role which prior consultation and free prior and informed consent (FPIC) and corporate Human Rights Due Diligence should have in establishing an investment in the first place and in determining what constitutes an investor’s legitimate expectation.
My report also includes some observations in relation to the Transpacific Partnership Agreement (TPP). Eleven of the twelve TPP countries have significant populations of indigenous peoples in whose territories and resource exploitation is widespread. In regional and international workshops I organized, these peoples and experts on international investment law expressed their concerns in relation to the lack of protections for indigenous peoples’ rights vis-à-vis those of foreign investors and the imbalance in remedies afforded to them. They also criticized the absence of consultations in the negotiation of the TPP and the lack of Human Rights Impact Assessments. In this regard, indigenous peoples are demanding good faith consultations prior to TPP ratification to ensure that adequate protections are included in relation to their rights to lands, territories and natural resources, including their rights to traditional knowledge.
In their responses to my questionnaires a number of States acknowledged the need to reform extant ISDS system. They also emphasised the importance of guaranteeing the regulatory space necessary for the realization of indigenous peoples’ rights, including the requirement for prior consultation with the objective of FPIC. I encourage other member States to respond to these questionnaires, which are available in English, French and Spanish, as this input will continue to inform my on-going work in the area.
I believe it is possible to develop a system of International Investment Law that reduces risk to indigenous peoples’ rights and serves to benefit them and the State, while providing investment security to foreign investors. Both short term and longer term reforms, at the level of International Investment Law will be necessary to realize this.
Tackling the underlying issue of corporate participation in violations of indigenous peoples’ rights would contribute significantly to addressing the current imbalance and incoherence in international law. Mechanisms have been proposed to address business and human rights, such as arbitration tribunals dedicated to providing a remedy for affected peoples and individuals. Discussions at the intergovernmental level on a treaty on business and human rights have also raised many of the issues witnessed in the context of promoting investor obligations under international investment agreements.
However, reforms in the international investment law regime alone will never be sufficient to guarantee respect for indigenous peoples’ rights in the context of investments. To realize this, home and host States must take the necessary measures to align their domestic regulatory frameworks with their obligations under international human rights law standards as they pertain to indigenous peoples’ rights. They must also establish enforcement mechanisms which guarantee that the practices of domestic and transnational corporations are consistent with those standards.
The recommendations in my report address the range of issues both within and beyond the international investment regime which I believe must be tackled if investments are to proceed in a manner that is consistent with respect for indigenous peoples’ rights. I encourage cooperation and creative thinking in this regard, and look forward to developing my 2017 report which will consider how human rights and sustainable development approaches can contribute to shaping the future of investments in or near indigenous peoples’ territories so that they serve to benefit all in a just and equitable manner.
By ensuring that international investment agreements do not restrict regulatory space, and by taking measures to protect indigenous peoples’ rights in the context of investor activities, States can prevent costly investor-State dispute settlement cases and eliminate uncertainty around the limits that international investment law places on both State and indigenous peoples’ rights to their lands, territories and resources. In addition, by invoking international human rights law arguments in settlement disputes, States will increase the pressure on investors to demonstrate adequate human rights due diligence prior to initiating settlement disputes.
Conservation and Indigenous Peoples Rights
I also wish to refer to my report to the General Assembly this year, in which I explore how conservation measures affect indigenous people and recommend measures to increase respect for indigenous peoples’ rights.
While protected areas have the potential of safeguarding the biodiversity for the benefit of all humanity, these have also been associated with human rights violations against indigenous peoples in many parts of the world. I had the privilege of being invited to present this report before the International Union for the Conservation of Nature (IUCN) World Conservation Congress which was held in Hawaii the first week of September.
The report highlighted various violations of indigenous peoples’ rights in the establishment of national parks and conservation areas. These include violent evictions from their traditional territories, killings, violations of their right to subsistence by not allowing them to engage in their traditional livelihood activities, among others. I reviewed the favorable legal developments as well as commitments and resolutions taken to advance a human rights-based approach to conservation. However, practical implementation and advancement of this human rights based approach remain sorely lacking. The report presents recommendations on how indigenous peoples’ rights can be better protected in conservation policy and practice.
There is increasing evidence and recognition that it is in indigenous peoples’ traditional lands and territories where better conserved ecosystems and high biodiversity are found. Indigenous peoples occupy around 22 percent of the world’s territory but this is where 80 percent of the world’s biodiversity still remains. However, deficient national legal recognition of indigenous peoples’ land rights continues to be the main obstacle in reinforcing their important contributions in conserving biological diversity and enhancing their participation in conservation efforts. Even more concerning is the fact that there are increasing incursions of extractive industries, agribusiness expansion and mega-infrastructure development in several protected areas which overlap with indigenous peoples’ territories. I encourage States to critically review their policy and legislative framework for the full recognition of the rights of indigenous peoples over their lands, territories and resources as enshrined in international human rights law.
Furthermore, I urge States and conservation organisations to actively promote the rights of indigenous peoples at the national and local level, to ensure that indigenous peoples equally participate in the management of protected areas and that all conservation measures include continuous joint monitoring of how conservation measures comply with standards protecting indigenous peoples’ rights.
The escalating incidence of killings of environmentalists, among them many indigenous leaders, further underlines the urgency that conservationists and indigenous peoples join forces to protect land and biodiversity from external threats, notably extractive industries, expansion of agribusiness operations, mega-infrastructure development.
I welcome the news from IUCN that important resolutions were adopted by the Congress which took into account some of the recommendations I made in my report. Some of these include:
Resolutions 29 – Recognising and respecting the territories and areas conserved by indigenous peoples and local communities (ICCAs) overlapped by protected areas.
Resolution 026 – Protected areas and other areas important for biodiversity in relation to environmentally damaging industrial-scale activities and infrastructure development. Resolution 08 on the Whakatane Mechanism which called on States to b. take action, as appropriate, to implement the Convention on Biological Diversity Plan of Action on Customary Sustainable use, particularly task 3, including promoting, “in accordance with national legislation and applicable international obligations, the full and effective participation of indigenous and local communities, and also their prior and informed consent to or approval of, and involvement in, the establishment, expansion, governance and management of protected areas, including marine protected areas, that may affect indigenous and local communities”.
Resolution 097 - Safeguarding indigenous lands, territories and resources from unsustainable developments. This recommends that governments work with indigenous peoples to create, institute and enforce legal and management regimes, as appropriate and necessary, that recognise indigenous peoples' rights, protect indigenous lands, territories and resources, and at the same time reduce the loss of biodiversity and the degradation of ecosystems ( para. 2) and encourages governments to enhance accountability and improve governance in order to avoid interventions that negatively impact on the rights of indigenous peoples regarding the development of their lands, territories and resources (para 3). Resolution B - Including indigenous peoples’ organisations in the structure of the Union
Ladies and gentlemen
Another important aspect of the work which I am mandated to do by the Human Rights Council is to undertake country visits. This year, I am presenting reports on three missions which I carried out to Brazil, Honduras and the Sápmi region. I appreciate the official invitations I have received from the States of the Latin American region where I have undertaken the majority of the country visits. Ì also thank the Governments of Norway, Sweden and Finland for inviting me to do a working visit to Sapmi. I continue to be hopeful that countries in Asia and Africa will soon demonstrate a similar openness.
Mission to Sapmi
Ladies and gentlemen,
In August 2015, I participated at a conference in Hemavan, Sweden at the request of the Sami Parliamentary Council, with representatives from the Sami parliaments of Norway, Sweden and Finland respectively, the Governments of of all three countries and civil society organizations, including the Sami Council, an umbrella organisation which represents the interests of Sami people in the region. Like my predecessor in 2010, I held meetings with various stakeholders and I am presenting a report to the Human Rights Council on key recommendations.
Unfortunately, while the process to negotiate the Nordic Sami Convention was at its final stages in August 2015 and despite the echoes of political will from all three Governments to adopt the Convention, I am saddened that their commitment to adopt this Convention by March 2016 has still not come to fruition. While I appreciate that there are a number of difficult questions on which to reach agreement, I hope that the States concerned will take advantage of the opportunity to put in place positive measures designed to promote respect for their obligations to indigenous peoples based on their human rights obligations. I note that, indeed, in the meeting in Hemavan the government representatives of Norway, Sweden and Finland emphasized their commitment to finalize the Convention and this was stressed by Norway in the comments they provided on my report.
In the meeting the Sami emphasized that their rights over their lands and resources are the sine qua non conditions for their long-term well-being and a prerequisite for them to be able to continue to exist as a distinct people. Those rights are not sufficiently established, implemented or judicially protected in Norway, Sweden or Finland, leading to situations of insecurity and instability. While I can appreciate that natural resource investments are of key importance for the domestic economies of the three countries, their ambition to promote mining in a socially and ecologically sustainable manner cannot be achieved as long as Sami rights are not adequately reflected and safeguarded in the legislation that regulates natural resource extraction.
In the light of the countries’ international human rights obligations and the commitments they have assumed with respect to the Sami people, I urge Norway and Sweden to ensure their Mining Act and Minerals Act do not hinder the respect, protection and fulfillment of human rights in the context of extractive activities. From a business perspective, the deficient regulatory frameworks have also created barriers for companies to carry out their operations in a manner consistent with international expectations regarding the rights of indigenous peoples.
While I commend that in Finland, the Mining Act shows that the Government is responding to concerns raised by the Sami people, in practice the Act has fallen short of its stated objective to ensure that mining activities and gold panning are adapted to secure the rights of the Sami as indigenous peoples.
I appreciate and thank the Governments of Norway and Finland for their comments on my report which clarified further some points I raised and identified some inaccuracies. The extensive comments which included clarifications on the Finnmark Act and the Finnmark Commission and on consultation and free, prior and informed consent as well as the clarifications on the legal frameworks in Norway and Finland are well-taken and I look forward to sustained discussions on these issues. I also welcome the Addendum to my report which Norway submitted. I welcome efforts of States to comment on my report because these will allow for continuing dialogues between my mandate and the States.
Mission to Honduras
Ladies and gentlemen
In my report following my country visit to Honduras in November 2015, I identified as key concerns the systematic problems indigenous peoples face with regards to the protection of their lands, territories and natural resources, along with high levels of impunity and a deficient access to justice. These represent fundamental problems that place them in a situation of total defenselessness against acts of violence brought by different actors. Additionally, they face a precarious socioeconomic situation of multidimensional poverty related to extreme inequality, corruption and lack of basis social services.
The situation of violence faced by indigenous peoples in Honduras has garnered international attention and condemnation due to the murder of the renowned indigenous Lenca leader, Berta Caceres, in March of this year, who led a series of protests against hydroelectric projects, most notably the Agua Zarca dam that affected Lenca communities in the the Rio Blanco region. I met Ms. Caceres during my visit to the construction site of the dam where I learned about the series of deaths, threats and violence that members of the Rio Blanco communities faced due to the project.
Because of this horrific event and its implications on indigenous rights defenders in Honduras, I prepared an Appendix to the report on Honduras about the situation in Rio Blanco, that specifically addressed the human rights problems generated by the Agua Zarca dam and the obligations of the State, business enterprises and international financial institutions in the context of this and other similar development projects. It is my hope that justice is effectively made in the case of the murder of Berta Caceres. Five people have been so far arrested for this murder; however, family members of Ms. Caceres, indigenous peoples’ organizations and civil society still demand further investigations into the intellectual authors of this crime. I support their demands that an international commission, headed by the Inter-American Commission on Human Rights, can monitor the investigations undertaken by national authorities.
In my report on Honduras, I also noted the grave situation of the Tolupan people, who have endured the highest number of murdered leaders (reportedly over 100 murders in recent decades) due to land conflicts with local political leaders, loggers and mining interests. Of extreme concern, is the fact that many of the indigenous leaders killed, like Ms. Caceres and other Lenca leaders killed before and afterwards, as well as Tolupan leaders recently killed, were beneficiaries of precautionary measures granted by the Inter-American Commission on Human Rights ordering the Honduran Government to protect their lives and personal integrity. I also noted the dangerous situation faced by the Tawahka, Miskito and Garifuna peoples due to the presence in their territories of organized crime, drug-trafficking and the related response by State military and police authorities, all of which have gravely affected their lives, physical integrity and ancestral lands and in many respects threaten their continued physical and cultural survival.
I highlighted various legislative and policy initiatives on indigenous peoples considered by Government institutions, including a draft law on consultation. In my report, I stressed the imperative to ensure that these initiatives be duly consulted with the widest range of indigenous peoples’ representative organizations in the country and obtain their free, prior and informed consent, in accordance with international human rights standards. I was recently asked by the United Nations Country Team in Honduras to provide comments on the draft consultation law currently considered by the Government.
I look forward to contributing to this initiative which can be an important first step to implement my recommendation that United Nations bodies in Honduras, including the newly created Office of the United Nations High Commissioner for Human Rights, in cooperation with the Government of Honduras and indigenous peoples, provide technical assistance to the State to carry out recommendations contained in the country report.
Mission to Brazil
Ladies and gentlemen
Brazil has a number of exemplary constitutional provisions pertaining to the rights of indigenous peoples and was, in the past, a leader in the area of demarcation of indigenous peoples’ territories. However, in the eight years since the visit of the previous mandate holder, there has been a disturbing absence of progress in the implementation of his recommendations and of the resolution of long-standing issues of key concern to indigenous peoples. I noted a worrying regression in the protection of indigenous peoples’ rights. In the current volatile political context, the threats facing indigenous peoples are exacerbated and the long-standing protections of their human rights at risk.
In my report, I make recommendations to address the most pressing issues I observed during the mission. They relate to the need for urgent measures to address violence and discrimination against indigenous peoples; strengthen State institutions such as FUNAI; build the capacity of State officials, including senior members of the executive and lower court judges, in the light of their inappropriate application of doctrines that deny rights; redouble efforts in land demarcation and protection; allocate resources to improve access to justice; guarantee meaningful good-faith prior consultation and participation of indigenous peoples in relation to large-scale or high-impact development projects and respect for indigenous peoples’ own consultation and consent protocols and proposals for addressing development issues; and ensure participatory impact assessments and redress for harm caused.
Given the marginalized status of indigenous peoples, the fact that serious violations of their rights, over recent decades, have not been adequately investigated or remedied and the urgent need to address ongoing structural discrimination, particular emphasis must be placed on the importance of initiating an independent and transparent national inquiry into violations of their rights. This should be implemented in cooperation with indigenous peoples, with the aim of transforming the State’s relationship with them into one that is based on respect, justice and self-determination.
Brazil owes a historical debt to its indigenous peoples who have suffered marginalization and discrimination since the formation of the State. Despite the hardships they have endured, they remain unwavering in their resolution to preserve their lands, to maintain and develop their cultures, customs and languages and to determine their own futures. Rather than being seen as a burden on the State or an obstacle to national development, their contributions to Brazilian society should be widely recognized and fully appreciated and celebrated. With this in mind, Brazil should embark on an inclusive process of belated State-building with its indigenous peoples premised on respectful and just relationships between self-determining peoples.
I would like to now thank the Government of Brazil for the comments which it provided to my report and would like to address some of them. I was pleased with the recent statement made by the Minister of Justice and Citizenship, Alexandre de Moraes, where he reaffirmed the commitment of the government to the promotion and protection of the rights of indigenous peoples. I also welcome his commitment to strengthening the National Foundation for Indigenous Peoples (FUNAI). I hope more adequate support will also extend to local FUNAI offices in order for them to provide much needed and adequate support to indigenous peoples’ rights.
I was also pleased to learn that the National Council for Human Rights (CNDH) which is comprised of twenty-two members including government officials, parliamentarians, representatives of the Judiciary and the Federal Prosecution Service, and nine representatives of NGOs has recently set up a Working Group on the Rights of Indigenous Peoples in the South of Brazil (States of Rio Grande do Sul, Santa Catarina and Paraná). I welcome the report which the Working Group presented in August 2016, identifying problems and proposing corrective action to those problems. The creation of the National Council for Indigenous Policy (CNPI) with a representative body distributed equally by indigenous peoples and relevant Government representatives and the recommendations adopted by the two meetings held thus far, are positive developments. The follow through of those recommendations, together with those I put forth in my report could be a basis to guide the work of both CNDH and CNPI.
Following my visit, I received a report that in April 2016, the Government took a number of steps to protect the rights of the Munduruku. These included initiating the demarcation of Sawré Muybu territory and suspending the licensing procedure of the Ministry of the Environment for the São Luiz do Tapajós dam, based on the position taken by FUNAI that the project was incompatible with indigenous peoples’ constitutional rights. I certainly welcome these positive developments and I hope these measures taken will be sustained and further reinforced by the new government.
Lastly, and with regard to Belo Monte, during my visit I was told and witnessed first-hand that mitigation has not been adequately implemented in a timely manner, as backed by documents received from FUNAI and Ministerio Publico Federal (MPF). Two concrete examples of this are the delay of demarcation of Cachoeira Seca (2016) which allowed illegal loggers to further deforest the area in recent years and the aggravated situation of health, particularly related to the sanitation services, as also denounced by MPF. I certainly hope that the State implements these mitigation measures which will spell the continuing survival of the indigenous peoples in those territories.
Before I end my report I would like to mention the promotion of good practices, during my second year as the Special Rapporteur. I have continued to provide technical assistance to Governments in their efforts to develop laws and policies that relate to indigenous peoples. These are also included in the longer version of my statement available in the OHCHR website. I will just highlight a few of them below:
In December 2015, I participated in a meeting organized by the Working Group on Indigenous Populations/Communities of the African Commission on Human and Peoples’ Rights on the follow up to the Outcome Document on the World Conference on Indigenous Peoples. During the meeting, I stressed the linkages of human rights to sustainable development and climate change as substantiated in the Paris Agreement on Climate Change (2015) and 2030 Agenda for Sustainable Development (2015), both of which uphold the rights of indigenous peoples who are vulnerable to poverty, inequality and discrimination.
In December 2015, I took part in the 19th Conference of Parties of the UNFCCC held 21st Conference of the Parties to the United Nations Framework Convention on Climate Change where human rights experts together with civil society actors managed to integrate human rights considerations in the Paris negotiations.
In January 2016, I took part in a two-day symposium with indigenous women leaders and their allies on murders and disappearances of indigenous women and girls to discuss the possible framework and structure of a national inquiry launched by the Government in December 2015 and subsequently met with the Ministers of Justice and Attorney General of Canada, Minister of Indigenous and Northern Affairs, and Minister of Status of Women to discuss the national inquiry.
In February 2016, I participated in an International seminar on indigenous jurisdiction and access to justice in Bogota, Colombia. In my presentation, I sought to encourage dialogue and cooperation between indigenous peoples and State authorities about the issue of justice administration.
In February 2016, I also participated in a seminar on experiences in litigation of cases of violence against women and women’s access to justice in Central America in Guatemala, where I made observations on strengthening indigenous women’s access to justice and protection against violence. The judgement in the Sepur Zarco case in Guatemala is an important historical achievement of justice for indigenous women who have been one of the most vulnerable sectors in Guatemala and other places in the world.
As Special Rapporteur I am called upon to contribute to ensuring that indigenous peoples voices are effectively heard, and to facilitate a dialogue between indigenous peoples, Governments, and other relevant actors involved in specific situations across the world in which indigenous peoples’ rights are not being respected. I would like to reaffirm here my strong commitment to this role, and with this commitment to contribute to solutions to the human rights challenges brought to my attention and to be proactive in efforts to prevent those from arising or escalating.
I thank you all for your kind attention.