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Expert Mechanism on the Rights of Indigenous Peoples Briefing for the Human Rights Committee, 16 July 2012

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Title: Expert Mechanism on the Rights of Indigenous Peoples Briefing for the Human Rights Committee, 16 July 2012


1
Expert Mechanism on the Rights of Indigenous
Peoples Briefing for the Human Rights Committee,
16 July 2012
Office of the United Nations High Commissioner
for Human Rights
2
Outline
  • Background to the Expert Mechanism
  • 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
  • Expert Mechanism Study on Cultures and Languages
  • Where to find further information

3
Background to the Expert Mechanism on the Rights
of Indigenous Peoples
  • Working Group on Indigenous Populations (1982
    2006)
  • Under the Sub-Commission on the Promotion and
    Protection of Human Rights
  • First draft of the Declaration on the Rights of
    Indigenous Peoples
  • Working Group on the Draft Declaration on the
    Rights of Indigenous Peoples (1995 2006)
  • Under the Commission on Human Rights
  • Finalised the text of the Declaration as
    submitted to the Commission on Human Rights/Human
    Rights Council 2006
  • Permanent Forum on Indigenous Issues (2000)
  • Special Rapporteur on the Rights of Indigenous
    Peoples (2001)
  • Human Rights Council adopted the Declaration in
    June 2006
  • Adoption of the Declaration on the Rights of
    Indigenous Peoples in the General Assembly (Sept
    2007)
  • Human Rights Council established the Expert
    Mechanism on the Rights of Indigenous Peoples
    (December 2007)

4
Mandate Resolution 6/36
  • Assistance for the implementation of the
    Councils mandate
  • Advisory function
  • Human Rights Council requests manner and form
  • 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

5
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

6
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 Councils
    webcast (http//www.un.org/webcast/unhrc/)
  • Reports at the same time as the Special
    Rapporteur on the rights of indigenous peoples

7
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
  • 2012 - 2015
  • Anastasia Chukhman (Russian Fed) 2013
  • Jannie Lasimbang (Malaysia) 2014
  • Wilton Littlechild (Canada) 2014
  • José Carlos Morales Morales (Costa Rica) 2013
  • Danfred Titus (South Africa) 2015

8
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

9
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

10
Annual sessions
  • The Expert Mechanism meets annually
  • in Geneva
  • usually in July
  • for 5 days
  • Indigenous peoples, states, non-state actors,
    academia, national human rights institutions and
    others attend

11
Participation in the Expert Mechanism
12
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 and calls for contributions from
    states, indigenous peoples etc
  • Expert seminars
  • Contributions from
  • States
  • Indigenous peoples individuals and
    representatives of indigenous peoples
  • Academic institutions
  • National human rights institutions
  • Non-state actors

13
Education Study
  • Education is an important means for the
    enjoyment, maintenance and respect of indigenous
    cultures, languages, traditions and traditional
    knowledge
  • 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

14
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

15
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

16
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
  • Indigenous peoples, in exercising their right to
    self-determination, have the right to education
    autonomy
  • 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

17
Participation Study
  • The principle of participation in decision making
    has a clear relationship with the right of
    indigenous peoples to self-determination,
    including the right to autonomy or
    self-government, and the State obligation to
    consult indigenous peoples in matters that may
    affect them, based on the principle of free,
    prior and informed consent.
  • Examination of the human rights framework on the
    right to participate in decision, including Human
    Rights Committee
  • General Comments 23 (on article 27) and 25 (on
    participation in public affairs)
  • Marshall et al. (Mikmaq people) v. Canada and
  • concluding observations that include references
    to article 1 ICCPR in the context of indigenous
    peoples issues
  • noting the relationship between the right to
    participate and indigenous peoples right to
    culture

18
Participation Study
  • 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

19
Participation Study
  • Free, prior and informed consent
  • Consistent jurisprudence from treaties and from
    human rights treaty bodies cited, including Human
    Rights Committee
  • 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 decision-making

20
Participation Study
  • good practices
  • 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

21
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

22
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

23
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

24
Consistent approaches to the Human Rights
Committee
  • Recent Human Rights Committee jurisprudence
  • similar approaches to consultation and free,
    prior and informed consent (eg in CO for
    Australia (2009) Sweden (2009) Mexico (2010)
    New Zealand (2010) El Salvador (2010) Poma Poma
    v Peru Togo (2011)

25
Resolution 18/8 (Sept 2011)
  • 2011-2012 study cultures and languages (to be
    submitted to HRC 21 in September 2012)
  • Request to continue to build on previous studies,
    including on participation EM focusing on
    indigenous peoples participation in extractive
    industry
  • Questionnaire seeking the views of States on best
    practices re implementation strategies to attain
    the goals of the Declaration
  • Discuss the World Conference on Indigenous
    Peoples (2014) to contribute the exploration of
    the modalities of the meeting, including
    indigenous peoples participation at the
    Conference and its preparatory process

26
Languages and cultures study
  • To be submitted to the HRC in September 2012
  • Draws on Human Rights Committee jurisprudence in
    relation to article 27 ICCPR and especially
  • Lubicon Lake v Canada Mahuika v New Zealand and
    Poma Poma v Peru.
  • that cultural rights involve positive duties
  • cultural rights can cover indigenous peoples use
    of their lands, territories and resources and
    their culturally significant activities
  • that cultural rights should be interpreted
    consistently with the right to self-determination
    in the context of indigenous peoples issues
  • that indigenous peoples participation is
    relevant in an assessment of whether economic
    activities contravene indigenous peoples
    cultural rights

27
Relationship to the Human Rights Committee
  • Consistent approaches to the interpretation of
    rights, for example the right to participate
  • Expert Mechanism studies provide detail on how
    cultural rights apply to situations facing
    indigenous peoples, relevant to monitoring of
    states compliance with the ICCPR, including in
    relation to individual communications

28
Added Value of Expert Mechanism studies in the
jurisprudence of the Human Rights Committee
  • Consistent messages from across the UN system,
    thus illustrating coordination (responding to
    issues associated with fragmentation)
  • Expert Mechanisms 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

29
Questions?
  • How might the Expert Mechanism assist the Human
    Rights Committee in its work?

30
More information
  • Expert Mechanism website
  • http//www.ohchr.org/EN/Issues/IPeoples/EMRIP/Page
    s/EMRIPIndex.aspx
  • OHCHR on indigenous peoples website
  • http//www2.ohchr.org/english/issues/indigenous/in
    dex.htm
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