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

 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 Outline

 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  : 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) Background to the Expert Mechanism on the Rights of Indigenous Peoples

Human Rights Commission Sub- Commission Working Group on Indigenous Populations Working Group on the Draft Declaration Human Rights Council GA Resolution 60/251 03/04/06 Institutional building (HRC Resolution 5/1) 18/06/06 HRC – UN Declaration 29/06/06 Renewal of the SR Resolution 6/16 28/09/07 General Assembly Informal meeting Expert Mechanism on the Rights of Indigenous Peoples HRC Resolution 6/36 HRC Resolution 9/7 First session 1-3/10/08 24/09/08 14/12/07 6-7/12/07 13/09/07 28/09/07 Second session 10-14/08/09 HRC Resolution 12/13 Sept.2009 Third session July 2010 GA adoption of the Declaration ECOSOC Special Rapporteur GA resolution 63/161 VFIP mandate PFII Place within the UN human rights system

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 10 th (2008), 12 th (2009), 15 th (2010) and 18 th (2011) sessions of the Human Rights Council  New: interactive dialogue (18 th session), available live on the Human Rights Council’s webcast ( 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 ( ) 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

 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 Distinctions between the Indigenous Mandates

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

Participation in the Expert Mechanism

 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 Expert Mechanism studies

 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 Education Study

 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 Advice on the Rights of Indigenous Peoples to Education

 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 Expert Mechanism’s reliance on ESCR Cttee and the ICESCR

 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. 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 decision- making  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 Study: Progress Report

 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  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 Participation Report: Final Study

 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 Decision 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 decision- making 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 Advice No 2 on Participation in Decison Making

 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 Expert Mechanism’s reliance on ESCR Cttee and the ICESCR

 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 Resolution 18/8 (Sept 2011)

 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 Relationship to 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 « Added Value» of Expert Mechanism studies in the jurisprudence of the ESCR Committee

 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 education and ESCR Jurisprudence

 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 Expert Mechanism’s study on participation and ESCR Committee General Comment on Cultural Life (article 15(1)(a)

 How might the Expert Mechanism assist the ESCR Committee in its work? Questions?

 Website of the Expert Mechanism:  MRIPIndex.aspx MRIPIndex.aspx  Website of the OHCHR on indigenous peoples:  tm tm More information