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  Establishment of the Expert Mechanism, 2007  Mandate of the Expert Mechanism:  Human Rights Council Resolution 6/36 (2007)  Composition of the Expert Mechanism  Sessions of the Expert Mechanism  Participation in the Expert Mechanism, including its annual sessions  Preparing a statement for presentation at the annual session Outline

 Role of the Office of the High Commissioner for Human Rights  Expert Mechanism Study on Education  Approach  Advice  Expert Mechanism Study on Participation  Approach  Good practices  Advice  Where to find further information Outline continued

 1982: Working Group on Indigenous Populations (WGIP)  Under the Commission on Human Rights and Sub-Commission on the Protection and Promotion of Human Rights (Sub-Commission)  Composed of 5 members of the Sub-Commission  Mandate to review developments re the promotion and protection of indigenous peoples’ rights and to evolve international standards on indigenous peoples’ rights  Open participation, including indigenous peoples’ representatives  1985: Drafting of the declaration began in the WGIP  1993: WGIP draft of declaration finalised  1994:  Sub-Commission approved the WGIP draft declaration  Draft declaration submitted to the Commission on Human Rights  : Commission on Human Rights established the Working Group on the draft declaration in 1995  Indigenous peoples, states and others contribute to drafting the declaration during annual sessions of the Working Group on the draft declaration Background to the Expert Mechanism on the Rights of Indigenous Peoples

 2006:  Dissolution of the Commission on Human Rights (including subsidiary bodies such as the WGIP) and replacement with the Human Rights Council  Human Rights Council «institution building» began  Approval of Declaration at the Human Rights Council (June 2006)  2007:  Agreement on the structure of the Human Rights Council and its subsidiary bodies  Expert Mechanism on the Rights of Indigenous Peoples established by the Human Rights Council  Adoption of the Declaration on the Rights of Indigenous Peoples in the General Assembly (Sept 2007) Background continued

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

 Negotiations 2006 and 2007  Inside and outside the formal sessions of the Human Rights Council, during its institution building process  Indigenous peoples lobbied for the Expert Mechanism  Informal meeting preceeding the Human Rights Council’s adoption of the resolution establishing the Expert Mechanism  Mandate of the Expert Mechanism created under Human Rights Council Resolution 6/36 of December 2007 Establishment of the Expert Mechanism

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

 Resolution 6/36:  shall be open to the participation, as observers, of States, United Nations mechanisms, bodies and specialized agencies, funds and programmes, intergovernmental organizations, regional organizations and mechanisms in the field of human rights, national human rights institutions and other relevant national bodies, academics and experts on indigenous issues, non-governmental organizations in consultative status with the Economic and Social Council;  the meeting shall also be open to indigenous peoples’ organizations and non- governmental organizations, whose aims and purposes are in conformity with the spirit, purposes and principles of the Charter of the United Nations, based on arrangements, including Economic and Social Council resolution 1996/31 of 25 July 1996, and practices observed by the Commission on Human Rights, through an open and transparent accreditation procedure in accordance with the rules of procedure of the Human Rights Council, which will provide for the timely information on participation and consultation with States concerned; Participation

 Accreditation procedure  Open  Internet-based  Available before the annual session on the Expert Mechanism’s website  Agenda items can include: current study, past studies, the Declaration on the Rights of Indigenous Peoples  Funding can be sought from the UN’s Voluntary Fund for Indigenous Populations: eoplesFundIndex.aspx Participation

Participation at the Expert Mechanism EMRIP Present candidate(s) Attend EMRIP’s session Send contributions to studies Participation in the Human Rights Council Oral contributions – raise issues Meet with indigenous peoples and relevant actors Meeting with the Special Rapporteur –communication

 Note the agenda item to which you would like to speak  Sign up to speak on the agenda item  Prepare written statement  Make copies of statement (DoCIP usually provides copying services) for distribution by the secretariat  Speak to the topic  5 minutes  Be clear  Speak slowly (as statement will be simultaneously translated)  NB: The Expert Mechanism cannot address specific allegations of violations of indigenous peoples’ rights Guidance for Statements at the Expert Mechanism’s sessions

 The Office of the High Commissioner for Human Rights (OHCHR)  Is the secretariat of the Expert Mechanism  Provides logistical support  Provides substantive support  Holds expert workshops in relation to the Expert Mechanism’s studies  The High Commissioner for Human Rights  Usually opens the Expert Mechanism’s annual session Role of the OHCHR

 Based on:  Research undertaken by experts  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

 Resolution 9/7: prepare a study on lessons learned and challenges to achieve the implementation of the right of indigenous peoples to education  Structure of the study:  Human rights based analysis of the scope and content of the right to education;  Indigenous education systems and institutions;  Lessons learned;  Challenges and measures to achieve the implementation of the right of indigenous peoples to education; and  The Expert Mechanism Advice No.1 on the right of indigenous peoples to education 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 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  The right to education for indigenous peoples is a holistic concept incorporating mental, physical, spiritual, cultural and environmental dimensions  Governments are urged to attach importance to building understanding and respect for traditional methods of teaching and learning Advice on the Rights of Indigenous Peoples to Education

 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  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

 The Expert Mechanism recommends that States identify specific challenges and possible measures to achieve the implementation of the right of indigenous peoples to education in their specific countries, in consultation and cooperation with indigenous peoples Advice on the Rights of Indigenous Peoples to Education

 Resolution 12/13 (2009):  To carry out a study on indigenous peoples and the right to participate in decision making  To present a progress report at the Council’s 15th session (2010)  To present the final study to the 18th session (2011)  Resolution 15/7 (2010)  Welcomed the completion of the progress report  Requested the Expert Mechanism to give examples of good practices of indigenous peoples’ participation at different levels of decision making  Final study finalised July 2011 Participation Study

 Progress Report  International human rights framework  Internal decision-making processes and institutions of indigenous peoples  Participation in decison making mechanisms linked to both State and non- State institutions and processes affecting indigenous peoples  Final Report of the Study  Defining good practices  Good practices in relation to indigenous peoples’ internal decision-making processes and institutions  Good practices in relation to decision making mechanisms linked to the State and relevant non-State institutions and processes affecting indigenous peoples  Advice No 2 on indigenous peoples and the right to participate in decision making 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. 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

 Indigenous peoples have the right to make their own independent decisions through which they determine their own political status and pursue their economic, social and cultural development  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

 Approach to good practices  Based on the Declaration on the Rights of Indigenous Peoples  Difficult to define «good»  Expert Mechanism does not verify that all practices are objectively good in every respect. It only indicates that certain elements of certain practices appear to have positive aspects based on its research and submissions received 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  Include Kuna Yala Comarca, American Indian nations, Saami parliaments, Philippines indigenous consultative bodies, New Caledonia customary senate, Chittigong Hill Tracts dispute resolution procedures, Mexican constitutional recognition of indigenous forms 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

 The duty of the State to obtain indigenous peoples’ free, prior and informed consent entitles indigenous peoples to effectively determine the outcome of decision-making that affects them, not merely a right to be involved in such processes  Consent is a significant element of the decision- making process obtained through genuine consultation and participation 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 idnigenous 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

 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)

Contribution to indigenous peoples’ rights EMRIP Providing a better understanding of Declaration provisions (through studies and research based advice) Providing a review of good practices and challenges for Declaration implementation Opportunities to engage with the Human Rights Council Promotion of the UNDRIP Regular panels UPR Interactive dialogue Coordination with the SR and PFII – meetings with the SR during the session to join efforts Coordination among indigenous peoples – strengthening the international movement

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