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Follow-up report on indigenous peoples and the right to participate in decision-making, with a focus on extractive industries

United Nations General Assembly Distr.: General 30 April 2012 Original: English Human Rights Council Expert Mechanism on the Rights of Indigenous Peoples Fifth session 9-13 July 2012 Item 4 of the provisional
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United Nations General Assembly Distr.: General 30 April 2012 Original: English Human Rights Council Expert Mechanism on the Rights of Indigenous Peoples Fifth session 9-13 July 2012 Item 4 of the provisional agenda Follow-up to thematic studies and advice Follow-up report on indigenous peoples and the right to participate in decision-making, with a focus on extractive industries Summary In the present follow-up report, the Expert Mechanism on the Rights of Indigenous Peoples examines the issue of indigenous peoples and the right to participate in decisionmaking, with a focus on extractive industries. It examines, inter alia, the Guiding Principles on Business and Human Rights endorsed by the Human Rights Council, relevant provisions of the Declaration on the Rights of Indigenous peoples, and policy considerations. Advice No. 4 provides guidance for States, extractive industries and indigenous peoples in relation to indigenous peoples participation in decision-making. GE Contents Annex Paragraphs I. Introduction A. Mandate for the report B. Coordination with the Special Rapporteur on the rights of indigenous peoples and the Permanent Forum on Indigenous Issues C. Ongoing work on the relationship between the Guiding Principles on Business and Human Rights and the rights of indigenous peoples II. International legal and policy framework A. Law B. Policy III. Conclusion Advice No. 4 (2012): Indigenous peoples and the right to participate in decision-making, with a focus on extractive industries Page 2 I. Introduction 1. The present follow-up report is aimed at enhancing the ability of States, indigenous peoples and other stakeholders, including business, to implement the right of indigenous peoples to participate in decision- making, in particular in relation to the extractive industry. It builds on the Expert Mechanism on the Rights of Indigenous Peoples study on indigenous peoples and the right to participate in decision-making (A/HRC/18/42). Clarity will be provided by outlining pertinent international human rights law, particularly the United Nations Declaration on the Rights of Indigenous Peoples, 1 and policy. A. Mandate for the report 2. In the report on its fourth session, the Expert Mechanism proposed to the Human Rights Council that it request the Expert Mechanism to continue its work on indigenous peoples and the right to participate in decision-making, with a focus on extractive industries, in cooperation with the thematic work of the Special Rapporteur on the rights of indigenous peoples, and to communicate and to share knowledge and good practices with the Working Group on the issue of human rights and transnational corporations and other business enterprises (A/HRC/18/43, pp. 3-4) In its resolution 18/8, the Human Rights Council welcomed the completion by the Expert Mechanism of its final study and the inclusion of the examples of good practices at different levels of decision-making therein, including those in connection with the activities of extractive industries, and requested the Expert Mechanism to continue to build on its previous studies, including its study on indigenous peoples and the right to participate in decision-making. B. Coordination with the Special Rapporteur on the rights of indigenous peoples and the Permanent Forum on Indigenous Issues 4. The Special Rapporteur on the rights of indigenous peoples is currently focusing his thematic work on extractive industries operating in or near indigenous territories (see A/HRC/18/35). The Permanent Forum on Indigenous Issues has engaged in a number of substantive activities related to indigenous peoples and the impact of extractive industries upon them In resolution 18/8, the Human Rights Council also welcomed the ongoing cooperation and coordination among the Special Rapporteur on the rights of indigenous 1 This is particularly timely given that there is now overwhelming support for the Declaration. 2 This focus was called for by observers of the Expert Mechanism s fourth session, including representatives of indigenous peoples organizations. 3 This includes the international expert group meeting on the theme Indigenous peoples and forests (see the report thereon, E/C.19/2011/5); the international expert group meeting on the theme Indigenous peoples: development with culture and identity: articles 3 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples (E.C.19/2010/14); the international expert group workshop on the theme Indigenous peoples rights, corporate accountability and the extractive industries (E/C.19/2009/CRP.8); and the international workshop on the theme of Methodologies regarding free, prior and informed consent and indigenous peoples (E/C.19/2005/3). 3 peoples, 4 the Permanent Forum on Indigenous Issues and the Expert Mechanism, and requested that such coordination continue. In that spirit, the present follow-up report was prepared after consulting their previous work. 6. Additionally, the Expert Mechanism, the Permanent Forum on Indigenous Issues and the Special Rapporteur on the rights of indigenous peoples have had initial discussions in relation to indigenous peoples and extractive industries, including in meetings at the Expert Mechanism s fourth session and in the annual coordination meeting among the Expert Mechanism, the Permanent Forum and the Special Rapporteur. Further, the topic was discussed during the interactive dialogue between the Special Rapporteur and the Expert Mechanism and the Human Rights Council, held within the framework of the eighteenth session of the Council. In addition, the Working Group on business and human rights has been consulted. C. Ongoing work on the relationship between the Guiding Principles on Business and Human Rights and the rights of indigenous peoples 7. The Expert Mechanism will invite the Working Group on business and human rights, the Special Rapporteur on the rights of indigenous peoples and the Permanent Forum on Indigenous Issues to work together on the relationship between the Guiding Principles on Business and Human Rights and indigenous peoples rights. II. International legal and policy framework A. Law 1. Permanent sovereignty of indigenous peoples over natural resources and the United Nations Declaration on the Rights of Indigenous Peoples 8. The right to participate is indivisible from and interrelated with other rights of indigenous peoples, such as their right to self-determination and their rights to their lands, territories and resources (A/HRC/18/42). Thus, although the right to participate is the focus of the present follow-up report, it should be read holistically and be understood as a coherent whole in the light of the rights of indigenous peoples relating to extractive industries more broadly. 9. As a fundamental inherent right, self-determination is best exemplified and fully enjoyed by indigenous peoples when exercised in relation to lands, territories and resources, especially in regard to extractive industries. In the implementation of articles 1 and 3 of the United Nations Declaration on the Rights of Indigenous Peoples, indigenous peoples have the right to the full enjoyment of common article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which states, in part: (a) All peoples have the right of self-determination. By virtue of that right they freely pursue their economic development; 4 The Special Rapporteur s study covers a broader range of subject matter and rights, beyond the right to participate in decision-making, and also is more empirical in focus, consistent with his mandate to undertake country visits and respond to communications. 4 (b) All peoples may, for their own ends, freely dispose of their natural wealth and resources In no case may a people be deprived of its own means of subsistence; (c) The States Parties to the present Covenant shall promote the realization of the right of self-determination [emphasis added.] 10. The Human Rights Committee has called upon States to act in accordance with article 1, paragraph 2, of the International Covenant on Civil and Political Rights, emphasizing, in relation to indigenous peoples, that the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence While only paragraph 1 of common article 1 of the Covenants appears in article 3 of the United Nations Declaration on the Rights of Indigenous Peoples, the content of paragraphs 2 and 3 of common article 1 are found in articles 23 and 32 of the Declaration. Further, article 3 needs to be read together with a cluster of articles (10, 11, 12, 20 and 25-31) in the Declaration, which generally relate to lands, territories and resources. Article 3 must also be read in the light of the articles specific to extractive industries, which include article 26, article 28 and, of particular importance, article 32. The latter article provides protection analogous to that provided under common article 1, paragraphs 2 and 3, ensuring that the free, prior and informed consent of indigenous peoples is obtained prior to approval of the use by private industries of indigenous peoples lands, territories and resources. 12. Furthermore, treaties and treaty principles must be considered in the development of extractive industries, consistent with both the Declaration on the Right to Development and preambular paragraphs 7, 8, 14, 15 and articles 3, 32 and 37 of the United Nations Declaration on the Rights of Indigenous Peoples, as stated by the Permanent Forum on Indigenous Issues in its report on its ninth session (E/2010/43-E/C.19/2010/15, para. 7). 13. Related to this, international law has developed a clear principle of the right of indigenous peoples to permanent sovereignty over natural resources. This is based, inter alia, on common article 1, paragraph 2, of the two International Covenants on Human Rights and on the United Nations Declaration on the Rights of Indigenous Peoples. The principle of permanent sovereignty is an integral part of the right of self-determination of indigenous peoples; in recognition thereof, the Special Rapporteur on indigenous peoples permanent sovereignty over natural resources noted that nowadays the right to selfdetermination includes a range of alternatives including the right to participate in the governance of the State as well as the right to various forms of autonomy and selfgovernance. In order to be meaningful, this modern concept of self-determination must logically and legally carry with it the essential right of permanent sovereignty over natural resources (E/CN.4/Sub.2/2004/30, para. 17). 14. Recognition of indigenous peoples permanent sovereignty over lands, territories and resources is a prerequisite for meaningful political and economic self-determination of indigenous peoples (ibid., para. 8). 2. Sustainable development and environmental responsibility and rights 15. Globally, a fundamental concern of indigenous peoples regarding extractive industry development, in addition to that of the dispossession of their lands, territories and resources, has been the ensuing unsustainable development and environmental degradation. 5 See, for example, the Committee s concluding observations on the fourth periodic report of Canada (CCPR/C/79/Add.105), para. 8. 5 Such patterns contrast with indigenous peoples traditional models of development and are rooted in a lack of recognition of indigenous peoples international human rights The link between the rights of indigenous peoples to culture and to sustainable development models has been commented upon by the Human Rights Committee in relation to article 27 of the International Covenant on Civil and Political Rights: Culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them The Permanent Forum on Indigenous Issues has also linked violations of cultural and treaty rights to unsustainable development, in particular, policies and programmes that ignore the cultural integrity, treaty relationships and rights of indigenous peoples and that, as a consequence, have had negative effects on their lives and livelihoods. 8 It outlines several solutions to unsustainable development that can be instructive for indigenous peoples, States and extractive industries. These include promoting self-determination through collective economic activities, maintaining the integrity of indigenous governance, implementing models of development where the intended outcome is considered in terms of improving the quality of life, enriching the notion of balance with Mother Earth, and promoting spiritual practices and the knowledge institutions of indigenous peoples (E/C.19/2010/14, para. 28). 18. Related to the promotion of indigenous peoples development with culture and identity is the promotion of treaty rights and treaty principles in accordance with articles 3, 32, 37, preambular paragraphs 7, 8, 14, 15 of the United Nations Declaration on the Rights of Indigenous Peoples and the Declaration on the Right to Development (E/2010/43- E/C.19/2010/15, para. 7). 19. Indigenous peoples have proclaimed several declarations that are relevant to development. 9 These all seek balance and harmony and merit particular consideration for implementation. For example, the Manila Declaration 10 states: 6 In State of the World s Indigenous Peoples (United Nations publication, Sales No. 09.VI.13), the authors state: In many regions, the experience of indigenous peoples has been that inadequate legal frameworks resulted in disruption to their traditional land tenure and use patterns, fragmentation and loss of traditional land, changes in settlement patterns, privatization of communal lands, degradation of land and/or resources, lack of recognition of territorial rights, insufficient and inequitable land allocation, lack of effective mechanisms for conflict resolution, inefficient land registers, and difficult procedures for land demarcation and titling. These factors have generated local tensions over land tenure and lack of access to productive lands, which impact on the economic and socio-cultural stability of indigenous peoples and their communities (p. 87). Indigenous peoples feel that many development policies are either directly or indirectly geared toward weakening or eradicating their traditional modes of production. (p. 88) 7 Communication No. 1457/2006, Poma Poma v. Peru, Views adopted on 27 March 2009, para E/C.19/2010/14, para For example, see the Cochabamba Peoples Agreement and the Universal Declaration on the Rights of Mother Earth, as well as the Bemidji Statement on Seventh Generation Guardianship and the Precautionary Principle. 6 Our cultural diversity has also been grossly eroded because of the destruction of biological diversity and lands, territories and resources by extractive industries upon which our cultures are based. This erosion of our cultural diversity is also a result of the imposition of colonial systems and the settlement of non-indigenous Peoples. Corporations enter into our territories with the promise of development through employment, infrastructure building and payment of governmental taxes. Despite these promises, there still exists a situation of dire poverty in those living close to extractive industry projects. This situation has fuelled conflicts between Indigenous Peoples and the State and extractive industry corporations, as well as causing divisions within the Indigenous communities themselves. 20. Another critical cultural rights concern is the need to protect sacred sites in the context of extractive industrial development, as noted in the report of the international expert group meeting on extractive industries, indigenous peoples rights and corporate social responsibility: Destruction of Indigenous Peoples sacred sites and areas of spiritual and cultural significance by extractive industries has to stop. States parties to the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage have to address the urgent need for the genuine recognition of indigenous religious, cultural and spiritual rights, including their sacred sites in the context of extractive projects The Guiding Principles on Business and Human Rights as they relate to indigenous peoples and the right to participate in decision-making, with a focus on extractive industries 21. International standards on the respective roles and responsibilities of States and business actors with regard to the human rights impacts of business-related activities, which are also applicable to situations often facing indigenous peoples in the context of extractive industry operations, have been clarified in recent years. In its resolution 17/4, the Human Rights Council unanimously endorsed the Guiding Principles on Business and Human Rights: Implementing the United Nations Protect, Respect and Remedy Framework (A/HRC/17/31, annex). This endorsement effectively established the Guiding Principles as the authoritative global standard for addressing business-related human rights challenges. 22. The Framework rests on three main pillars: (a) the State s duty to protect against human rights abuses by third parties, including business enterprises, through appropriate policies, regulation and adjudication; (b) the corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved; and (c) the need for greater access to remedy, both judicial and non-judicial, for victims of business-related human rights abuse (A/HRC/17/31, para. 6). 23. The Guiding Principles apply to all States and business enterprises in all operational contexts, including in contexts where business activities have a bearing on indigenous peoples. Some States and business enterprises are starting to take the first steps towards 10 Adopted at the International Conference on Extractive Industries and Indigenous Peoples, Manila, March For an example of how to respect the cultural practices and traditional knowledge of indigenous peoples, see Canadian International Development Agency, Local and Indigenous Traditional Knowledge: Engagement and Use for Sustainable Development (2010). 11 E/C.19/2009/CRP.8, para implementing the Guiding Principles; however, guidance on and assessment of the implementation of the Guiding Principles in specific contexts is at a preliminary stage It is important for all States and all business enterprises to apply all of the Guiding Principles specifically to indigenous peoples in a non-discriminatory manner (A/HRC/17/31, annex, p. 6). 25. The following provides some initial reflections on how aspects of the Guiding Principles may relate to the exercise of the right of indigenous peoples to participate in decision-making with respect to extractive industries. 13 The list of elements is not exhaustive, and the further elaboration of these and related issues is a longer-term project that should be undertaken in collaboration with others. 26. As regards the first pillar of the Guiding Principles, the State duty to protect against human rights abuse by third parties, the following key points may be especially relevant to business activities that affect indigenous peoples: (a) States may be in breach of their internati
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