CONSEJO INTERNACIONAL DE TRATADOS INDIOS

                                                                                                                                                ADVANCE COPY

UNITED NATIONS                                     E/CN.17/2002/PC.2/6.Add.5

___________________________________________________________________________

ECONOMIC AND SOCIAL COUNCIL

                                                                                                                                                     Dist.: General

                                                                                                                                                28 January 2002

                                                                                                                                                 Original: English

Prepared by the CSD Indigenous Peoples’ Caucus and the Inuit Circumpolar Conference, invited as the organizing partners of the Dialogue Segment, for indigenous people. The paper has been prepared in consultation with indigenous people worldwide

Introduction

1.      This background paper submitted in preparation for the World Summit on Sustainable Development (WSSD) reviews developments in the past ten years since UNCED, to highlight achievements, obstacles, threats and challenges in the implementation of the Rio agreements, focusing on indigenous peoples and sustainable development. The commitments made in Chapter 26 of Agenda 21 "Strengthening the Role of Indigenous People and their Communities", as well as other Rio commitments are the starting point of this assessment, and linkages are also made with the other international processes bearing on this theme.

2.      Paragraph 26.1 of Agenda 21 states: In view of the interrelationship between the natural environment and its sustainable development and the cultural, social, economic and physical well-being of indigenous people, national and international efforts to implement environmentally sound and sustainable development should recognize, accommodate, promote and strengthen the role of indigenous people and their communities.

3.      Indigenous peoples are at the cutting edge of the crisis in sustainable development. Their communities are concrete examples of sustainable societies, historically evolved in diverse ecosystems. Today, they face the challenges of extinction or survival and renewal in a globalized world. One clear criterion for sustainable development and Agenda 21 implementation must be actions taken to secure indigenous peoples' rights and welfare.

4.      The past 10 years have highlighted the vital role and contributions of indigenous peoples to sustainable development.  Indigenous peoples comprise five per cent of the world's population but embody 80 per cent of the world's cultural diversity.  They are estimated to occupy 20% of the world's land surface but nurture 80% of the world's biodiversity on ancestral lands and territories. Rainforests of the Amazon, Central Africa, Asia and Melanesia is home to over half of the total global spectrum of indigenous peoples and at the same time contain some of the highest species biodiversity in the world. The Traditional Native American Farmers’ Association estimates that Indigenous Peoples cultivated 65% of the crop varieties consumed throughout the world.

5.      The past ten years have also seen the intensification of conflicting trends in addressing the imbalances in social and ecological relationships that underpin the global crisis in sustainable development:

(a)    The rise of economic neo-liberalism and corporate globalisation and the attendant commodification and 'privatisation' of social and ecological values; and

(b)   The resurgence of indigenous peoples' movements, local community and citizen's movements and transnational partnerships asserting the primacy of sustainable local communities and cultures and ecological integrity.

6.      This conflict is evident in the disjuncture between global economic, financial and trade decisions made by the World Trade Organisation, the International Monetary Fund and the World Bank which are blocking and constricting national and local options and efforts to define flexible sustainable development paths, as encouraged in the global policy dialogue on environment and sustainable development. This lack of coherence in global policy processes is blocking the implementation of positive measures supportive of indigenous peoples’ self-determination and sustainable development.

Intensifying Pressures on Indigenous Lands

7.      The accelerating processes of globalisation since UNCED, expose the vulnerabilities of indigenous peoples when left to the logic of states and markets, without adequate protection for their rights. A laissez faire environment of liberalised and expanding trade, investment, production and consumption is resulting in continuing land alienation and forcible displacement of indigenous peoples.

8.      As the pressures on the Earth's resources intensify, indigenous peoples bear disproportionate costs from resource-intensive and resource-extractive industries and activities such as mining, oil and gas development, large dams and other infrastructure projects, logging and plantations, bio-prospecting, industrial fishing and farming, and also eco-tourism and imposed conservation projects. These pressures also accelerate some unsustainable economic activities carried out by indigenous peoples themselves, notably where indigenous rights have not been respected, thus leaving communities with insufficient land and resources.

9.      Contrary to Agenda 21, which states that the lands of indigenous peoples should be protected from activities that are either environmentally unsound or considered by indigenous peoples to be socially and culturally inappropriate, the growth in the global economy has accelerated the intrusion of transnational corporations in ancestral lands and communities. The World Bank and the regional development Banks play a key role in promoting mining and other extractive industries and in promoting the macro-economic fiscal, institutional and legal reforms that facilitate international investment in extractive industries in developing countries. In the case of the World Bank, this is done through programmatic lending, structural and sectoral adjustment lending, project loans to national governments, equity investments and loans to private sector operators through the International Finance Corporation and by providing political risk insurance through the MIGA.

10.  In Alaska, the 1.5 million-acre coastal plain of the Arctic National Wildlife Refuge (ANWR) is under clear threat of oil exploration pending legislation that would undermine the Refuge’s currently protected status.  This area is the birthplace of the Porcupine caribou heard, upon which the subsistence, culture and way of life Gwich'in Athabascan Peoples of Alaska and Canada depend. 

11.  In central Oklahoma, United States, the very existence of the Kickapoo Nation and the health of their land and water resources are under threat by an impending North American North-South superhighway from Canada to Mexico, part of which will run through the reservation of the Kickapoo.  Under the auspices of NAFTA, plans for the superhighway have been under way for four years, yet the United States has failed to formally discuss these plans with the Kickapoo Nation. 

12.  Mining exploration and development in the Philippines, Indonesia, India, Peru, Guyana, Colombia, Ghana and many other countries are a serious threat to indigenous peoples and local communities.

13.  The revival of the Bakun Dam in Malaysia, which requires the clear-cutting of 80,000 hectares of rainforests, and forced displacement of 5,000 – 8,000 indigenous persons from 15 communities, is a prime example of unsustainability, in the light of preferable energy options.

14.  The biggest challenge faced by indigenous peoples and communities in relation to sustainable development is to ensure territorial security; the legal recognition of our ownership and control over customary land and resources, and the sustainable utilization of our land and other renewable resources for our cultural, economic, and physical health and well-being.

15.  Indigenous peoples have acted vigorously to overcome these threats by mobilising locally and internationally to stop destructive projects in the short-term, and to address the underlying causes of resource conflicts in the longer-term. An international conference on Conflict Resolution, Peace Building, Sustainable Development and Indigenous Peoples[2] attended by indigenous participants from all global regions, affirmed the importance to be self-determining:  in the care for mother earth, in the languages spoken, in the education of our children, in conflict resolution and in the renewal of institutions and values of our ancestors.

16.  In many countries, indigenous peoples have successfully halted some destructive projects. Indigenous communities have stopped mining development in the Philippines, Panama and Norway, through local protest actions, media exposure, campaigns aimed at shareholders and investors and through court action. The Innu have stopped the building of a new NATO base on their lands. 

17.  Communities in the Amazon basin have become knowledgeable about the impacts of oil development and have organised themselves for informed engagements with oil companies ranging from community opposition to dialogue and negotiations. After learning of the devastating impacts of oil extraction in other provinces of Ecuador, the Quichua of Sarayacu gathered in Assemblies recognised as valid by the government of Ecuador, to discuss the environmental and cultural threats posed by the oil industry. The primary result was a formal resolution to unequivocally reject oil development. Following this resolution, promises for “unconditional” economic support has provoked divisions within the communities and the extraction of signed agreements with individuals rather than with the appropriate representatives of the Quichua communities, thereby undermining the Quichua’s legitimate and democratically chosen leadership.

18.  In Mindoro island in the Philippines, long-standing Mangyan indigenous organizations with pending ancestral land claims over an area likewise claimed by Mindex/Crew Development found that the State agency responsible for indigenous affairs, the National Commission on Indigenous Peoples (NCIP), worked with the company to establish a new indigenous organization supportive of the mining project, in return for the promise of recognition of ancestral land rights in the same area.[3]

19.  Negotiations between indigenous communities, governments and corporations are more likely in countries with a clear legal framework for indigenous rights.  Furthermore, transitions from military regimes to democratic governments also provide the political space for the introduction and recognition of indigenous rights. In a number of countries, peace agreements have been concluded between governments and indigenous peoples, including Guatemala, the Philippines, northeast India and the Chittagong Hill Tracts in Bangladesh. There remain many countries, however, where indigenous peoples suffer from militarisation and government control.

20.  Longer- term security for indigenous peoples requires legal recognition of their rights to ownership and control of their lands, territories and natural resources. Many indigenous communities are mapping their traditional lands and territories, initiating processes for cultural renewal and community strengthening, as well as serving as a basis for government recognition of their lands and customary use. Gains have been made for example in Malaysia, Thailand, Indonesia and the Philippines in Asia; in Venezuela, Guyana, Peru and Brazil in Latin America; and in South Africa, Botswana and Namibia in Africa. The Russian government has passed a law recognising and protecting areas of traditional land use.

21.  These important gains are often overshadowed by the widespread violations of indigenous land rights in the development process. The UN Special-Rapporteur Mrs. Erica Irene-Daes, in her Final Working Paper on Indigenous Peoples and their Relationship to Land put forward a framework for the analysis of contemporary problems regarding indigenous land rights highlighting:

·        Failure states to acknowledge indigenous rights to lands, territories and resources;

·        Discriminatory laws and policies affecting indigenous peoples in relation to their lands;

·        Failure to demarcate;

·        Failure of States to enforce or implement laws protecting indigenous lands;

·        Problems in regard to land claims and return of lands;

·        Expropriation of indigenous lands for national interests, including development;

·        Removal and relocation;

·        Other government programmes and policies adversely affecting indigenous peoples' relationship to their lands, territories and resources;

·        Failure to protect the integrity of the environment of indigenous lands and territories.

International Standards on the Rights of Indigenous Peoples

22.  Indigenous peoples’ rights have assumed an important place in international human rights law. This body of law is still expanding and developing through Indigenous advocacy in international fora; through the decisions of international human rights bodies; through recognition and codification of Indigenous rights in international instruments presently under consideration by the United Nations and Organization of American States; through incorporation of Indigenous rights into conservation, environmental and development-related instruments and policies; through incorporation of these rights into domestic law and practice; and through domestic judicial decisions.[4] Indigenous rights have attained the status of customary international law and are therefore generally binding on states. International law recognises the rights of indigenous peoples to:

·        Self-determination

·        To ownership, control and management of their traditional territories, lands and resources;

·        Exercise their customary law

·        Represent themselves through their own institutions

·        Free, prior and informed consent to developments on their land

·        Control, and share in the benefits of the use of, their traditional knowledge.

23.  Self-determination for indigenous peoples means 'the right to control over their institutions, territories, resources, social orders, and cultures without external domination or interference, and their right to establish their relationship with the dominant society and the state on the basis of consent.'[5]

24.  International bodies mandated with protection of human rights have paid particular attention to Indigenous rights in recent years.  The UN Committee on the Elimination of Racial Discrimination, the UN Human Rights Committee, the International Labour Organization’s Committee of Experts and the Inter-American Commission on Human Rights all stand out in this respect. These bodies have contributed to progressive development of Indigenous rights by interpreting human rights instruments of general application to account for and protect the collective rights of Indigenous peoples. Even the African Commission on Human and Peoples’ Rights, has begun to address Indigenous peoples’ rights by taking the important step of establishing a working group on Indigenous peoples in Africa.[6]

25.  Their recent judgements and decisions provide important guidance for States and Corporations about meeting their human rights obligations with respect to indigenous peoples. 

26.  The UN Sub-Commission for the Protection and Promotion of Human Rights approved the draft UN Declaration on the Rights of Indigenous Peoples in 1994. All governments, in furtherance of their Rio commitments and human rights obligations must move towards its early adoption by the General Assembly. This is a major political goal within the UN Decade for Indigenous Peoples (1995-2004), and important activity under Agenda 21. Its achievement will signal a real openness and seriousness by governments to enter into a “New Partnership” with indigenous peoples for sustainable development.

27.  The absence of universally agreed standards on the rights of indigenous peoples is a major obstacle in fully empowering indigenous peoples to play their role in sustainable development. It was noted by the UN Secretary General in his mid-term Report on the UN Decade for Indigenous Peoples that "No universal standards on indigenous peoples guide the United Nations as a whole, and in practice, United Nations organisations are either not adopting any particular guidelines or else are developing guidelines on the basis of different procedures."[7]

28.  The processes leading to the adoption of the Draft UN Declaration on the Rights of Indigenous Peoples enjoyed the open and full participation of indigenous peoples, governments, international organisations and scholars; and, resulted in its broad endorsement as the minimum standards to secure the rights and well-being of indigenous peoples. In the words of the UN High Commissioner for Human Rights[8]:

"The United Nations draft declaration states the link between human rights and development, namely that the one is not possible without the other. Thus, economic improvements cannot be envisaged without protection of land and resource rights.  Rights over land need to include recognition of the spiritual relation indigenous peoples have with their ancestral territories. And the economic base that land provides needs to be accompanied by a recognition of indigenous peoples' own political and legal institutions, cultural traditions and social organizations. Land and culture, development, spiritual values and knowledge are as one. To fail to recognize one is to fail on all."

29.  The UN General Assembly at its Millennium Session approved the establishment of a UN Permanent Forum on Indigenous Issues, as an advisory body to the ECOSOC, meeting for the first time in May 2002.  Its broad mandate covering social and economic, environment, development, education, health, human rights and all matters affecting indigenous peoples, makes this potentially a very important focus for promoting indigenous people’s rights-based sustainable development. 

30.  Other organisations in the United Nations system such as the UNDP, UNESCO, WHO, and WIPO have also adopted policies and programmes on Indigenous Peoples.

31.  The Commission on Human Rights has recently appointed a Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People. His first report due in 2002 will complement other special studies which have also be completed on including Protection of the Heritage of Indigenous Peoples (1995); Treaties, Agreements and Other Constructive Arrangements Between Indigenous Peoples and States (1999); and Indigenous Peoples Relationships to Land (2001).

On Prior Informed Consent

32.  In a context of increasing recognition of the rights to self-determination of Indigenous Peoples, the principle of free, prior and informed consent of indigenous peoples to development projects and plans affecting them, has emerged as the standard to be applied in protecting and promoting their rights in the development process. 

33.  Article 7(1) of ILO Convention 169 provides that:

The people concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development.

34.  This article is one of the general principles of the Convention and provides a framework within which other articles can be interpreted. Other general principles of the Convention require participation, consultation and good faith negotiation.

35.  In its 1997 General Recommendation, the Committee on the Elimination of Racial Discrimination elaborated on state obligations and Indigenous rights under the Convention. The Committee called upon states-parties to:

… ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent.[9] 

36.  In the Concluding Observations on Australia’s report, the Committee reiterated in 2000:

… its recommendation that the State party ensure effective participation by indigenous communities in decisions affecting their land rights, as required under article 5(c) of the Convention and General Recommendation XXIII of the Committee, which stresses the importance of ensuring the “informed consent” of indigenous peoples.[10]

37.  Building upon these principles, Article 30 of the UN’s Draft Declaration on the Rights of Indigenous Peoples acknowledges that:

Indigenous Peoples have the right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including the right to require the State to obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources particularly in connection with the development, utilization or exploitation of mineral, water or other resources….

38.  In the Philippines free, prior and informed consent of indigenous peoples is required by law for the following activities: exploration, development and use of natural resources; research and bioprospecting; displacement and relocation; archaeological explorations; policies affecting indigenous peoples like Executive Order 263 (Community-based Forest Management) and entry of military.

39.  The definition of prior informed consent in the Indigenous People’s Rights Act of the Philippines provides that:

·        All members of the community affected consent to the decision

·        Consent is determined in accordance with customary laws and practices

·        Freedom from external manipulation, interference or coercion

·        Full disclosure of the intent and scope of the activity

·        Decision is made in language understandable to the community

·        Decision is made in process understandable to the community

40.  In the coming years, a better understanding of this standard and its application will be important for the implementation of sustainable development programmes with indigenous peoples.

Indigenous Peoples in Global Environmental Negotiations

41.  It is not surprising that indigenous issues have figured prominently in the policy deliberations and negotiations to implement the Rio agreements on Biodiversity, Climate Change, Desertification, Sustainable Forest Management, Persistent Organic Pollutants and Hazardous Wastes; as well as in other debates on trade liberalisation, intellectual property rights, debt and structural adjustment and financing for development.

Cultural and Biological Diversity

42.  The Convention on Biological Diversity (CBD) recognises the traditional knowledge of indigenous peoples and local communities, and has developed a cross cutting work programme on traditional knowledge and other related articles of the Convention.

43.  The CBD Conference of Parties, at its fourth meeting, established an open-ended inter- sessional working group on the implementation of Article 8j and related provisions of the Convention on traditional knowledge.  The creation of this body, with the support of many governments and strong lobbying by indigenous peoples organisations, makes it potentially a significant forum for policy exchanges and policy formulation.

44.  The CBD as such, affords indigenous peoples very limited and weak protection for their cultural and intellectual property.  The CBD does not seek to challenge the legitimacy or operation of intellectual property law, merely recognizing that intellectual property rights can act to assist governments in the conservation of biological diversity. Another main weakness within the CBD is the strong emphasis on national sovereignty over biodiversity, without adequate recognition for indigenous territories.  Provisions for benefit sharing would also rely on governments to recognize and enforce this right.

45.  Some advances can be made primarily through national legislation and regional frameworks (e.g. Andean Pact).   Gains can be made here in terms of strengthening prior informed consent of indigenous peoples, and raising awareness and understanding of sui generis arrangements to strengthen control of indigenous peoples.  Of course, these positive steps can be taken regardless of the CBD, by governments serious about indigenous peoples rights.

46.  The 5^th meeting of the Conference of Parties (COP5) of the CBD decided on:[11]

·        Recognition of the importance of the participation of indigenous peoples and local communities from the local to international level in a wide variety of CBD work programmes;

·        Recognition of the special roles of women from indigenous peoples and local communities to the conservation of biodiversity;

·        Recognition of the International Indigenous Forum on Biodiversity as advisory body of the COP;

·        Promotion of the nomination of members of indigenous peoples and local communities to the international roster of experts;

·        Promotion of indigenous delegates within official delegations of CBD processes;

·        The continuation of the Working Group on Article 8j and related provisions concerning traditional knowledge;

·        The creation of a Working Group on Access and Benefit Sharing which recognizes the participation of indigenous peoples and local communities and the principle of prior informed consent to any potential use of their knowledge.

47.  Efforts must be made to ensure implementation of CBD obligations through National Biodiversity Strategies and Action Plans, with the full and effective participation of indigenous peoples.

48.  The Convention on Biological Diversity through its work programmes and processes has been innovative in addressing the concerns of indigenous peoples.  Its ecosystem approach accords well with indigenous realities and allows substantive participation in its work programmes. The linkages between the CBD and other environmental conventions can work to address some inconsistencies in the narrower, econometric or technocratic approaches of the climate negotiations.

On Climate Change and Indigenous Peoples

49.  In the global climate negotiations, indigenous peoples have expressed concerns that current discussions within the Framework Convention on Climate Change, as well as the practical implementation of the Kyoto Protocol do not provide for their adequate participation. They are profoundly concerned that the measures to mitigate climate change currently being negotiated such as plantations, carbon sinks and tradeable emissions, will result in projects which adversely impact upon their natural, sensitive and fragile eco-systems, contaminating soils, forests and waters, which already perform important climate functions.

50.  They are concerned that the current proposed definitions of afforestation, deforestation, and reforestation pose a threat to the traditional uses of Indigenous Peoples of their lands and territories. In the past, even well intentioned development policies and projects have resulted in disastrous social and ecological consequences. Under the UNFCCC, the technocratic concepts, policies and measures being negotiated fail to consider the best interests of Indigenous Peoples.

Global Policy Dialogue on Forests[12]

51.  Emerging United Nations’ standards related to forests affirm:

(a)    Secure land rights for indigenous people

(b)   Full participation in forest-policy making

(c)    Recognition of traditional forest-related knowledge

(d)   Promotion of community-based forest management

52.  In practice, both large-scale logging and plantations have commonly been carried out in violation of these rights and principles. The land rights of indigenous peoples in forests are commonly denied and resistance to forestry development has often been met with further human rights violations. The undermining of forest-based livelihoods, impoverishment, the erosion of cultural identity, dispossession and increased mortalities are all widely documented as results of forest exploitation. Indigenous women have suffered particular hardships and human rights abuse.

53.  Recent forestry ‘best practice’ asserts indigenous peoples’ rights, prioritises well-being and community control of forests and forestry decision-making. Efforts to promote reforms through independent, third party certification have had mixed results. Successes have been achieved in recognition of indigenous use rights and in promoting community-based management in boreal forests. In the tropics, best practice cases are more rare, frustrated by lack of good governance, absence of law and order and inadequate forestry regulations.

54.  New technologies are helping forest-based indigenous peoples to map their own lands, assert their land claims and develop novel forest management systems based on traditional forest-related knowledge and customary law. However, repressive states are now seeking to outlaw such techniques and retain forests for the use of large-scale companies.

55.  In many countries, translating agreed international human rights and forestry standards into practice will require private sector companies to operate to higher standards than national laws require. If private sector companies seek to operate in areas claimed by indigenous peoples, they must respect customary rights holders as the legitimate owners of the land and accept the principle that the local communities have the rights to free, prior and informed consent to whatever is planned in their lands and forests. A commitment to enter into negotiated and legally binding agreements between private sector operators and indigenous peoples will help restore equitable relations between developers and forest-based indigenous communities.

56.  In the longer-term, national policy, legal and institutional reforms will all be required to secure indigenous peoples’ rights and ensure a future for forests based on the principles of justice and equity.

57.  Taking into account the specific demands and proposals for action made by indigenous peoples to the UNCSD, the following proposals have not accepted by the intergovernmental process:[13]

(a)    Self-determination and self-development;

(b)   Recognition as distinct “peoples”;

(c)    Explicit recognition of the right to own, use and control territories;

(d)   Prior informed consent for activities and decisions affecting indigenous territories;

(e)    Mainstreaming of the Draft UN Universal Declaration on the Rights of Indigenous Peoples into Agenda 21 and the Forest Principles and National Forest Programmes; and

(f)     Funding to support indigenous peoples’ participation in UN fora.

Traditional Production and Trade and Conservation

58.  In recent years, customary production and economic activities by indigenous peoples have been damaged by conservation approaches that fail to work with indigenous peoples and local communities concerned. Traditional activities like the sustainable hunting and harvesting of marine mammals by the Arctic peoples and rotational swidden agriculture by the forest peoples in Asia, Latin America and the Pacific are important for the livelihoods and well being of communities, and have been proven historically to be socially and ecologically sustainable.

59.  Following years of negative lobbying campaigns by conservation organisations in Europe, the sealskin industry has collapsed, with devastating impacts on the Inuits. Sale of sealskins was once the main source of cash income for many Inuit families and seal hunting was central to traditional culture and values.  The loss of this revenue has been catastrophic, beyond its economic impacts, including negative social, cultural, nutritutional and psychological effects. 

60.  The right of the Inuit to continue this traditional sustainable harvesting activity must be recognised and strategies developed to revitalize and restore the Arctic sealing industry.[14]

61.  The catch phrase “slash and burn agriculture” has been applied indiscriminately to undermine varied systems of indigenous rotational agriculture in forested and hilly areas with an image of environmental destruction.  Historical and current research, including studies done by indigenous researchers, have shown this to be a sustainable and adaptive system capable of changing to suit differing circumstances while remaining loyal to the idea of self-reliance in food production.  It is often combined with wet rice paddy, animal husbandry, specialized cropping, kitchen gardens, hunting and agro-forestry to supply the needs of indigenous villages. [15]

62.  Support must be given for land recovery, renewal and strengthening of traditional production systems, which have contributed to biodiversity, including its conservation and sustainable use.

63.  Likewise, support must be given to Indigenous Peoples' programs to conserve the biodiversity and manage the resources within their lands and territories. This includes support for Indigenous Peoples to protect and/or collect their traditional knowledge, practices, seeds and other resources through: (i) effective use of their own in situ methods and