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Access to justice in ordinary and indigenous justice system
- Body
- Special Rapporteur on the rights of indigenous peoples
- Legal status
- Non-negotiated soft law
- Document type
- Special Procedures' report
- Year
- 2019
- Document code
- A/HRC/42/37
Document
Analysis of the impacts of international investment agreements on the rights of indigenous peoples
- Body
- Special Rapporteur on the rights of indigenous peoples
- Legal status
- Non-negotiated soft law
- Document type
- Special Procedures' report
- Year
- 2016
- Document code
- A/HRC/33/42
Document
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 4
- Paragraph text
- In her 2015 report to the General Assembly (A/70/301), the Special Rapporteur concluded that the protections that international investment agreements provide to foreign investors can have significant impacts on indigenous peoples' rights. In order to gain further insights into the issue she sent questionnaires to States Members of the United Nations, indigenous peoples and civil society organizations and, in cooperation with the International Work Group for Indigenous Affairs, the Asia Indigenous Peoples Pact, the Columbia Center on Sustainable Investment and the Indigenous Peoples' International Centre for Policy Research and Education (Tebtebba), organized a series of regional and global consultations with indigenous peoples and experts in the area of international investment law and human rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Education
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 5
- Paragraph text
- This research indicates that there are significant impacts on indigenous peoples' rights as a result of the international investment regime, in addition to the impacts of the investments themselves. These impacts are manifested in the subordination of those rights to investor protections, generally as a result of a phenomenon referred to as regulatory chill and serious deficiencies in the dispute resolution process instituted by the investment regime.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 6
- Paragraph text
- The present report is the second of three that the Rapporteur dedicates to this issue. She has previously introduced the topic and touched on some of the impacts of international investment agreements on indigenous peoples' rights and the more systemic issues associated with the international investment law regime. In the present report, she seeks to further contextualize and examine those impacts by focusing on cases involving such agreements and rights. In her final report, she will reflect on the standards of protections that those agreements afford and contextualize them in the light of developments in international human rights law and the sustainable development agenda as they pertain to indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 7
- Paragraph text
- In doing so, the Special Rapporteur seeks to promote coherence in international investment law and international human rights law and ensure that State fulfilment of duties pertaining to indigenous peoples' rights is not obstructed by protections afforded to investors.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 8
- Paragraph text
- The international investment regime consists of 3,268 international investment agreements, comprising almost 3,000 bilateral investment treaties and more than 300 investment chapters of bilateral or regional free trade agreements. These agreements, between States, provide legal protections to investors of "home States" for their investments in "host States".
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 9
- Paragraph text
- International investment agreements tend to follow a standard format, with provisions on: prohibiting expropriation or "regulatory taking" without compensation; national treatment or non-discrimination, meaning that foreign investors are treated no less favourably than domestic investors; "most favoured nation treatment", requiring the same standard of treatment available to other foreign investors; "fair and equitable treatment", or "minimum international standards of treatment", which can be very broad in scope, generally including protection of investors' "legitimate expectations";and full protection and security for investments.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 10
- Paragraph text
- International investment agreements also typically provide investors with access to an investor-State dispute settlement process, whereby investors can bring arbitration cases against a host State for alleged failures to protect their investments in accordance with the provisions in the agreements. There is generally no obligation to exhaust domestic remedies or appeals system, and minimal transparency or opportunities for third-party intervention. Awards are enforceable through the acquisition of a State's overseas assets, are not subject to any financial limitations and can run into billions of dollars.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 11
- Paragraph text
- According to the United Nations Conference on Trade and Development (UNCTAD), cancellations or alleged violations of contracts and revocation or denial of licences are among the most commonly challenged State actions,with approximately 30 per cent of all settlements relating to the extractive and energy industries, which account for most new investments. The majority of such cases are taken against States with significant populations of indigenous peoples in whose territories the exploited mineral, energy or forest resources are located.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 12
- Paragraph text
- Recent years have seen a growing number of megaregional free trade agreements, with scopes that extend far beyond trade to include investment and regulatory dimensions, essentially forming global economic structural agreements. The most recent is the Trans-Pacific Partnership. Its investment chapter, containing many of the standard provisions in the model bilateral investment treaty of the United States of America, is one of its most controversial features. It has been widely criticized, including by Special Rapporteurs, for limiting democratic space by effectively transferring public decision-making powers over economic, social and cultural governance to corporate actors.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 13
- Paragraph text
- Under international human rights law, indigenous peoples are recognized as peoples vested with the right to self-determination, as affirmed in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, by virtue of which they are entitled to determine their own social, cultural and economic development. The rights affirmed under those treaties, which have been widely adopted, take on particular characteristics when interpreted in the light of indigenous peoples' distinct realities, needs, world views and historical contexts and the jus cogens prohibition of racial discrimination. The United Nations Declaration on the Rights of Indigenous Peoples offers the clearest articulation and interpretation of those rights as they pertain to indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 14
- Paragraph text
- This is reflected in the jurisprudence of the United Nations human rights treaty bodies, which instruct States to use the United Nations Declaration on the Rights of Indigenous Peoples when implementing their treaty obligations. The treaties have also been interpreted by national and regional courts and commissions in Latin America and Africa in the light of the provisions of the Declaration and the International Labour Organization (ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169), indicating the universal applicability of those instruments and signalling the emergence of customary international law in the area of indigenous peoples' rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 15
- Paragraph text
- The concept of "indigenous peoples" is not defined under international law. However, its generally accepted characteristics include: self-identification as an indigenous people; the existence of and desire to maintain a special relationship with ancestral territories; distinct social, economic or political systems from mainstream society, which may be reflected in language, culture, beliefs and customary law; and a historically non-dominant position within society. This applies irrespective of State nomenclature.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 16
- Paragraph text
- Indigenous peoples' territorial and property rights are sui generis in nature, encompassing the territories and resources that they have traditionally owned, occupied or otherwise used or acquired, including the right to own, use, develop and control resources. Those collective rights exist irrespective of State titles and are premised on: their status as self-determining peoples entitled to the lands and resources necessary for their physical and cultural survival; their customary land tenure regimes; and long-term possession of ancestral territories.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 17
- Paragraph text
- Consequently, States are obliged to establish culturally appropriate mechanisms to enable the effective participation of indigenous peoples in all decision-making processes that directly affect their rights. To ensure this, international human rights law standards require good-faith consultations to obtain their free, prior and informed consent.This requirement applies prior to the enactment of legislative or administrative measures, the development of investment plans or the issuance of concessions, licences or permits for projects in or near their territories.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 18
- Paragraph text
- Human rights bodies have consequently clarified that economic growth or national development cannot be used as a basis for non-consensual infringements on the territorial and cultural rights of indigenous peoples. This is reinforced by the erga omnes nature of the right of all peoples to self-determination, the prohibition of racial discrimination and the fact that their protection is a matter of public interest.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 19
- Paragraph text
- Indigenous peoples are among the most marginalized and discriminated against groups in the world. The international framework protecting their rights emerged largely in response to that reality. Significant advances have been made in some jurisdictions in relation to the recognition of their rights, in particular in Latin America, and varying degrees of recognition are afforded in the domestic regulatory frameworks of other countries. However, throughout much of Asia and Africa, the rights recognized as pertaining to groups that meet the characteristics of indigenous peoples under international law tend to fall short of those recognized under international human rights law standards and, in many cases, the international law category "indigenous peoples" is not officially recognized.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 20
- Paragraph text
- Even in countries where international human rights law standards have been incorporated into domestic law, further steps are necessary to adjust the law to fully meet these international standards and ensure their enforcement. The associated "implementation gap" between law and practice is often symptomatic of power imbalances between vulnerable indigenous peoples and powerful political elites who seek to benefit from exploitation of resources found in their territories.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 21
- Paragraph text
- This power imbalance is generally mirrored in the relationship between institutions established to protect indigenous peoples' rights and those responsible for promoting and facilitating natural resource exploitation. Therefore, even in jurisdictions with advanced legal frameworks, deep-rooted structural discrimination and vested interests can render ineffective the legal protections afforded to indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 22
- Paragraph text
- The Guiding Principles on Business and Human Rights affirm the independent corporate responsibility to respect indigenous peoples' rights as recognized in international human rights law. This responsibility is bolstered by the incorporation of the Principles into standards, such as the Organization for Economic Cooperation and Development (OECD) Guidelines on Multinational Corporations. A growing body of standards exists in relation to investment that affects indigenous peoples' lands, including performance standards of most international financial institutions, such as the International Finance Corporation, and apply to private banks that adhere to the Equator Principles, which require clients to respect indigenous peoples' rights, including free, prior and informed consent. The World Bank has included the requirement for such consent in its draft revised policy. However, other banks, such as the African Development Bank and the Brazilian Development Bank, have yet to develop safeguard policies for indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 23
- Paragraph text
- The standards of a growing number of multi-stakeholder initiatives include respect for indigenous peoples' rights, as affirmed under the United Nations Declaration on the Rights of Indigenous Peoples, and consequently require free, prior and informed consent prior to approving or undertaking an investment. Some extractive industry bodies and companies sourcing palm oil, sugar, soy and other resources have also made policy progress towards the recognition of rights recognized in the Declaration, including the requirement for such consent, as has the United Nations Global Compact. Those developments reflect the general acknowledgement by transnational corporations of their responsibility to respect indigenous peoples' rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 24
- Paragraph text
- However, implementation of those commitments remains poor, and issues remain surrounding the interpretation of indigenous peoples' rights, in particular the right to give or withhold free, prior and informed consent.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 25
- Paragraph text
- Tackling the underlying issue of corporate participation in violations of indigenous peoples' rights would contribute significantly to addressing the current imbalance and incoherence in international law. Mechanisms have been proposed to address business and human rights, such as arbitration tribunals dedicated to providing a remedy for affected peoples and individuals. Discussions at the intergovernmental level on a treaty on business and human rights have also raised many of the issues witnessed in the context of promoting investor obligations under international investment agreements.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 26
- Paragraph text
- The Special Rapporteur's research reveals an alarming number of cases in the mining, oil and gas, hydroelectric and agribusiness sectors whereby foreign investment projects have resulted in serious violations of indigenous peoples' land, self-governance and cultural rights. Those violations, which can extend to crimes against humanity, have been addressed extensively in the recommendations and jurisprudence of international and regional human rights bodies.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 27
- Paragraph text
- Typically, the host States involved employ economic development policies aimed at the exploitation of energy, mineral, land or other resources that are predominantly located in the territories of indigenous peoples. The government agencies responsible for implementing those policies regard such lands and resources as available for unhindered exploitation and actively promote them as such abroad to generate capital inflows. Recognition of indigenous peoples' rights in the domestic legal framework is either non-existent, inadequate or not enforced. Where they exist, institutions mandated to uphold indigenous peoples' rights are politically weak, unaccountable or underfunded. Indigenous peoples lack access to remedies in home and host States and are forced to mobilize, leading to criminalization, violence and deaths. They experience profound human rights violations as a result of impacts on their lands, livelihoods, cultures, development options and governance structures, which, in some cases, threaten their very cultural and physical survival. Projects are stalled and there is a trend towards investor-State dispute settlements related to fair and equitable treatment, full protection and security and expropriation.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Economic Rights
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 28
- Paragraph text
- Despite significant developments in the recognition of indigenous peoples' rights and safeguards under international human rights law, investment in those sectors is generating "increasing and ever more widespread effects on indigenous peoples' lives" as the legal vacuum arising from the lack of recognition or enforcement of their land rights facilitates arbitrary land expropriation, enabling national and local officials to make those lands available for investment projects. At the same time, the vast majority of those lands are protected under international investment agreements, and related investor-State dispute settlement disputes in agribusiness and extractive sectors are expected in Africa and Asia, while in Latin America there is a growing number of claims concerning settlements in relation to such activities in or near indigenous territories.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 29
- Paragraph text
- Special Rapporteurs, United Nations treaty bodies and the Inter-American Commission on Human Rights have made numerous recommendations urging home States to adopt regulatory measures for companies domiciled in their jurisdictions aimed at preventing, sanctioning and remedying violations of indigenous peoples' rights abroad for which those companies are responsible or in which they are complicit.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 30
- Paragraph text
- The Inter-American Commission on Human Rights has noted that addressing related jurisdictional issues may require negotiations between States during bilateral or other agreements and before foreign companies are accepted for business.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 31
- Paragraph text
- International investment agreements can have serious impacts on indigenous peoples' rights as a result of three main interrelated issues: (a) the failure to adequately address human rights in the preambles and substantive provisions of such agreements; (b) the actual or perceived threat of enforcement of investor protections under investor-State dispute settlement arbitration, leading to regulatory chill; and (c) the exclusion of indigenous peoples from the drafting, negotiation and approval processes of agreements and from the settlement of disputes.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 32
- Paragraph text
- These potential impacts of international investment agreements must be considered in the light of the current inadequate recognition and lack of enforcement of indigenous peoples' rights in domestic legal frameworks. Such agreements, and investor-State dispute settlements, tend to block necessary advances and developments in domestic legal frameworks as they relate to investment activity. They limit the State's will and freedom to impose and enforce human rights obligations on transnational corporations and to progressively realize human rights. By entrenching investor protections, they also entrench rights-denying aspects of extant legislative frameworks and contribute to preventing the needed reform from a human rights perspective.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 33
- Paragraph text
- International human rights law and international investment agreements play significant roles in governing the behaviour of host States in relation to resource extraction in or near indigenous peoples' territories. Agreements serve to protect and regulate property rights of investors related to the exploitation or use of land and resources. Those rights can come into direct conflict with the pre-existing - but not necessarily formally recognized and titled - inherent customary law and possession-based property rights of indigenous peoples protected under international human rights law.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 34
- Paragraph text
- International human rights law recognizes that in certain contexts restrictions can be placed on indigenous peoples' property rights. However, to be legitimate, such restrictions must be: (a) established by law; (b) necessary; (c) proportional to their purpose; and (d) non-restrictive to the peoples' survival. It affirms that, in the context of indigenous peoples' property rights, these conditions imply that good-faith consultations must be held to obtain free, prior and informed consent before any measures affecting those property rights can be considered legitimate.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 35
- Paragraph text
- Inadequate respect and protections for indigenous peoples' land and free, prior and informed consent rights when granting rights to investors over their territories are the root causes for subsequent and broader violations of indigenous peoples' rights. In such contexts, international investment agreements that fail to recognize international human rights law obligations contribute to the subordination of indigenous peoples' rights to investor protections, as those protections become an obstacle to future recognition of indigenous peoples' pre-existing rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 36
- Paragraph text
- In order to address the perverse situation that arises when indigenous peoples are prevented from realizing their land and resource rights owing to protections afforded to investors, a former Special Rapporteur has stressed: That resolving [indigenous peoples'] land rights issues should at all times take priority over commercial development. There needs to be recognition not only in law but also in practice of the prior right of traditional communities. The idea of prior right being granted to a mining or other business company rather than to a community that has held and cared for the land over generations must be stopped, as it brings the whole system of protection of human rights of indigenous peoples into disrepute.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 37
- Paragraph text
- International investment agreements that have facilitated and protected investments in indigenous territories are often accompanied by the deployment of military and private security services. The effects of this are a major concern in many jurisdictions, in particular those with histories of low-intensity conflict. As a result, under international human rights law, and as reflected in article 30 of the United Nations Declaration on the Rights of Indigenous Peoples, military activities should not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed to or requested by the indigenous peoples concerned. However, such security presences are effectively mandated under certain existing interpretations of the provisions of such agreements on full protection and security, leading to a direct conflict between international investment law and international human rights law.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 38
- Paragraph text
- In some cases, international investment agreements, and measures deemed necessary to facilitate their implementation, have triggered large-scale conflict and significant loss of life. On 1 January 1994, when the North American Free Trade Agreement came into effect and triggered privatization of indigenous peoples' communal lands, the Zapatista National Liberation Army, composed of indigenous peoples from Chiapas, initiated an armed rebellion, calling the Agreement a "death sentence" for indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 39
- Paragraph text
- Some 14 years later, the free trade agreement between the United States and Peru was used as a pretext for a series of neo-liberal legislative decrees, 10 of which had seriously negative implications for Amazonian indigenous peoples' territorial rights. The refusal of the Government of Peru to accept proposals made by indigenous peoples triggered mobilization, resulting in the tragic deaths of 30 people when the military was deployed in response.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 40
- Paragraph text
- Consideration of investor-State dispute settlement claims where indigenous peoples' rights are involved affords the opportunity to assess the practices of tribunals, the arguments made by States and investors and the space available for indigenous peoples' participation and the ways in which international investment agreements can come into conflict with international human rights law.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 41
- Paragraph text
- In the International Centre for Settlement of Investment Disputes case Burlington Resources Inc. v. Ecuador (2010) the oil and gas company claimed that Ecuador had failed to meet its obligations to give its operations full protection and security against indigenous peoples' opposition and at times violent protests. The State argued that the indigenous peoples' actions had been a case of force majeure and did not address the issue of indigenous peoples' rights in its defence. The security aspect of the claim was rejected on procedural grounds without addressing the indigenous rights issues. The case was also subject to parallel consideration by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights . In 2012, the Court ruled that the failure to consult the indigenous peoples and obtain their free, prior and informed consent, and the use of force by the State, had put the indigenous peoples' survival at risk.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 42
- Paragraph text
- In Chevron v. Ecuador (2014), the company took a series of arbitration cases to avoid paying damages awarded by Ecuadorian courts in 2011. The $8.6 billion award followed a class action suit addressing harms suffered by indigenous peoples as a result of environmental contamination. The case demonstrates the extremely broad and potentially indigenous rights-denying interpretation of "investment" as including a lawsuit in domestic courts and payments to affected people arising from the lack of remediation. Precautionary measures were subsequently sought from the Inter-American Commission on Human Rights seeking to prevent any action arising from the investor-State dispute settlement award that would contravene, undermine, or threaten the human rights of the concerned indigenous communities.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 43
- Paragraph text
- In Von Pezold and Border Timbers v. Zimbabwe (2015), the company claimed expropriation under the bilateral investment treaties between Germany and Zimbabwe and between Switzerland and Zimbabwe in the context of the State's taking of land. Four indigenous communities, whose traditional lands were the subject of proceedings, submitted an amicus submission claiming that the State and the company had human rights obligations towards them. In its preliminary order of June 2012, the International Centre for Settlement of Investment Disputes tribunal acknowledged their claims to the lands and that its determinations may well have an impact on the interests of the indigenous communities. However, the tribunal rejected their amicus submission on the grounds that: (a) the communities and their chiefs lacked "independence", as they were associated with people affiliated to the Government, and therefore the claimants may be unfairly prejudiced by their participation; (b) it was not in a position to decide if they were indigenous or not and lacked the competence to interpret indigenous peoples' rights; (c) it was not persuaded that consideration of international human rights law obligations, including, article 26 of the United Nations Declaration on the Rights of Indigenous Peoples was part of its mandate, and rules of general international law did not necessarily extend to international human rights law; and (d) neither the State nor the company had raised indigenous rights issues. It concluded that the putative rights of the indigenous communities as "indigenous peoples" under international human rights law was a matter outside of the scope of the dispute.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 44
- Paragraph text
- In Glamis Gold v. United States (2009), an arbitration panel found against the company, which had been refused access to a sacred area of the Quechan tribal nation. The decision hinged on the tribunal's position that its role was to assess if the customary international law standard of fair and equitable treatment had been breached and not to assess if the State had fairly balanced the competing rights of the Quechan nation and the company. It held that the State had been justified in relying upon the opinion of the professionals it had engaged and that, as the investor's expectations had not been induced by the State in a quasi-contractual manner, they did not trigger a treaty breach. The decision also pointed to the significance of the highly regulated environment in California with respect to environmental measures in general and mineral exploration in particular, which should have tempered the investor's expectations. The tribunal accepted the Quechan amicus submission but did not engage with its argument that international human rights law as it pertained to indigenous peoples was applicable in the case.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 45
- Paragraph text
- In Grand River Enterprise Six Nations, Ltd. v. the United States (2011), a tobacco company owned by members of the Canadian Haudenosaunee nations challenged measure taken by the United States. One of the issues raised by the company was the absence of prior consultation in relation to some of the measures. While finding that no expropriation had occurred, the tribunal stated that it may well be that there does exist a principle of customary international law requiring governmental authorities to consult indigenous peoples as collectivities on governmental policies or actions significantly affecting them. As the enterprise was owned by individuals, the tribunal held that it did not have to address the issue of prior consultation. It did, however, add that a good case could be made that consultations should have occurred with governments of the native American tribes or nations in the United States, whose members and sovereign interests could, and apparently are, being affected by the measures to regulate commerce in tobacco.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 46
- Paragraph text
- In the Permanent Court of Arbitration case South American Silver Mining v. the Plurinational State of Bolivia, the company is seeking $387 million for the alleged expropriation of 10 mining concessions and violations of fair and equitable treatment, pursuant to the bilateral investment treaty between the United Kingdom of Great Britain and Northern Ireland and the Plurinational State of Bolivia. The company holds that it made legitimate efforts with the communities to achieve an overall consent and that opposition to the project is from a small group of illegal miners and certain indigenous organizations, with the Government fomenting conflict. It argues that the communities have repeatedly requested it to move forward with the project, and alleges that the Plurinational State of Bolivia failed to provide full protection and security, noting its "patently unreasonable" decision not to prosecute indigenous leaders, given the implications for its investment.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 47
- Paragraph text
- The Plurinational State of Bolivia responded that: (a) it had acted in the public interest and had been justified in reverting ownership to the State in accordance with the principles of proportionality and necessity, to avoid security concerns arising out of indigenous peoples' opposition to the project and to restore public order; (b) it was enforcing domestic legislation that should have tempered the company's legitimate expectations, as the State made no commitment to stability; (c) the project violates rights recognized in the United Nations Declaration on the Rights of Indigenous Peoples; (d) the company had attempted to fabricate consent in total disregard for the right to self-government of the concerned indigenous peoples; (e) the bilateral investment treaty had no applicable law clause, so there should be "systemic interpretation" in accordance with article 31 (3) (c) of the Vienna Convention on the law of treaties, including human rights obligations towards indigenous peoples under national and international law, as this would be consistent with the evolving nature of standards around fair and equitable treatment, full protection and security, arbitrariness and expropriation; and (f) customary international law recognizes the primacy of human rights over investor protections, citing the ruling of the Inter-American Court of Human Rights in Sawhoyamaxa v. Paraguay and Article 103 of the Charter of the United Nations.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 48
- Paragraph text
- In response, the company contends that: (a) the State failed to show how the systemic interpretation would result in having to degrade the protections granted to the company under the treaty to uphold the putative rights of indigenous communities under international law; (b) the United Nations Declaration on the Rights of Indigenous Peoples, OECD Guidelines and the Guiding Principles on Business and Human Rights are non-binding instruments, while the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), the Inter-American Commission on Human Rights and the jurisprudence of the Inter-American Court of Human Rights are not binding on the United Kingdom, and consequently they are not rules of international law applicable to relations between the parties; (d) the State failed to demonstrate that protection of indigenous peoples' rights had advanced to the level of "erga omnes obligations" or why human rights trump investor protections.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 49
- Paragraph text
- The company invoked the view of Canada in Grand River Enterprise Six Nations, Ltd. v. the United States (see para. 48) that the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169) and the United Nations Declaration on the Rights of Indigenous Peoples do not form part of customary international law, and the decisions of previous tribunals in Glamis Gold v. United States (see para. 47) not to rule on the applicability of indigenous rights and in Von Pezold and Border Timbers v. Zimbabwe (see para. 46) that indigenous rights do not fall under the scope of bilateral investment treaties. The company holds that an exception maintaining preference for indigenous peoples' rights over investor protections would be necessary to "degrade" investor protections and points to the standard Maori exception employed in the bilateral investment treaties of New Zealand as evidence of this.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 50
- Paragraph text
- In the International Centre for Settlement of Investment Disputes case Bear Creek Mining Corp. v. Peru, the company is claiming over $500 million for alleged indirect expropriation, lack of fair and equitable treatment, discrimination and lack of full protection and security for its presumptive mining rights at the Santa Ana concession, under the free trade agreement between Peru and Canada. The claim was made following indigenous peoples' protests, which gave rise to the withdrawal of its mining concession.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 51
- Paragraph text
- According to the company, the protests, some of which turned violent, were politically motivated involving an anti-foreign and anti-mining movement that gained support from the Aymara indigenous people. It claims that, rather than assess the social and environmental conditions, the Government of Peru acted out of political expediency and capitulated to extreme violence. The company states that it intended to comply with environmental permitting and corporate social responsibility and had consulted the indigenous communities that supported the project and that would benefit significantly as a result of employment and revenues.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 52
- Paragraph text
- The State's response addressed the nature of the investment, the necessity of its actions and the absence of adequate consultation and free, prior and informed consent. It argued that the project had not constituted an investment as permissions to proceed were still pending, including the approval of the environmental social impact assessment. Consequently, the company had never held rights to mine. The indigenous peoples' protests had paralyzed major cities in Puno, Peru, for more than a month and the violent social unrest had been due to deep-rooted indigenous community opposition to mining activities and not, as the company alleged, "puppet shows staged by politicians" or "political theatre". It states that the revocation of the concession had therefore been a non-discriminatory and necessary exercise of its police powers aimed at guaranteeing public safety.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 53
- Paragraph text
- Addressing the consultation and consent requirements, the State argues that the company had been responsible for engaging with and learning the concerns of the indigenous peoples affected by the project but had failed to consult with and obtain the consent of all the affected indigenous peoples and communities, as it had been required to do under relevant international human rights law standards, Peruvian law, practices recommended by the Government of Canada and the International Council on Mining and Metals guidelines. In that regard, it argues that Peruvian law serves to implement the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), which requires prior consultation and in practice is a "consent" requirement. It states that it was incumbent on the company not only to go through the motions of consulting with affected indigenous communities, and that it must in fact obtain prior approval as, without that approval or consent, the project cannot succeed. It also states that the company would not have obtained consent had the months of violent protests in opposition to it been predicted. Instead, the company's support had come from a handful of communities in the area of influence of the project and not from the neighbouring communities that would also be affected by the project and who opposed it. This selective and divisive approach to consultation served to fuel discontent and conflict with cross border implications.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 54
- Paragraph text
- The Colombia Centre on Sustainable Investment submitted an application to file a written submission in the case, but was denied by the tribunal. The amicus submission had pointed to the inconsistency between the investor's understanding of what is meant by "an investment" and the definition in the free trade agreement. Furthermore, it had raised the consequent non-applicability of the fair and equitable treatment standard and the failure to demonstrate legitimate expectations, even if that standard had been applied. Similarly, it had pointed to the central role that the requirement to seek and obtain free, prior and informed consent should play in the assessment of the facts and the determination of the award, and the urgency of ensuring compliance with this requirement, in the light of the extensive mining-related social conflict throughout Peru. According to the submission, providing compensation to the company would be equivalent to granting it a right to exploitation and would disregard indigenous peoples' rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 55
- Paragraph text
- A number of observations can be made with regard to the above cases. Firstly, in all of the cases where an award was issued, international human rights law as it pertains to indigenous peoples' rights was not considered a source of applicable law. With the exception of Glamis Gold v. United States, indigenous peoples' rights and interests were effectively ignored by tribunals and considered immaterial to proceedings, despite the fact that violations of their rights and efforts to assert them had been core issues underpinning the disputes in question, and the decisions could have had potentially profound impacts on their rights and well-being.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 56
- Paragraph text
- The decision in that case is regarded as forward-looking in terms of ensuring respect for the protection of indigenous peoples' sacred spaces and demonstrating that awards can be sensitive to and inclusive of indigenous peoples' issues. The tribunal's decision that a 50 per cent reduction in the projected earnings, arising from a measure aimed at protecting indigenous peoples' sacred places, did not constitute indirect expropriation and that the measures did not constitute a "manifestly arbitrary" denial of justice, supports this view.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 57
- Paragraph text
- However, the tribunal essentially ignored the position articulated in the Quechan nation amicus submission that international human rights law as it pertained to the rights arising in the case should be considered applicable law. A related critique is that the tribunal relied heavily on the robust legislative history in California relating to the environment in the determination of what constituted an investor's legitimate expectation, thereby setting a dangerous precedent in jurisdictions that do not have such a history.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 58
- Paragraph text
- How a tribunal would respond to such an argument is unknown. An alternative argument could be that, in States where the rule of law is weak, legislative reform to respect human rights is inevitable once the political environment matures sufficiently. As State obligations in relation to indigenous peoples exist under international human rights law, a reasonable investor should expect that they will eventually be implemented, as any expectation that they will not is blatantly unjust and lacks legitimacy. A clearer position on behalf of the tribunal, that a State maintains the right to regulate in order to protect its indigenous peoples' rights, as recognized under international human rights law, would have avoided this ambiguity.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 59
- Paragraph text
- One reason provided for the failure of tribunals to address indigenous rights was the State's failure to raise human rights issues in its arguments, a view also expressed by tribunals in other cases. This contrasts with the pending cases of Bear Creek Mining Corp. v. Peru and South American Silver Mining v. the Plurinational State of Bolivia, in which the States place significant emphasis on indigenous peoples' rights, in particular consultation and free, prior and informed consent rights, as meriting consideration by the tribunals. This development points to a potential synergy between affording protection to indigenous peoples' rights in domestic regulation and international investment agreements and reducing the risk of potentially costly lawsuits in the context of measures affecting investor protections.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 60
- Paragraph text
- These cases also raise important issues regarding corporate and State responsibilities in relation to consultations seeking to establish the free, prior and informed consent of indigenous peoples, and the relationship that such consent has in establishing an investment over which an investor can claim protection. In doing so, the cases give tribunals an opportunity to address an issue of fundamental importance to indigenous peoples' rights and to ensuring greater coherence between the international investment law and international human rights law. An overarching issue that arises relates to the role of corporate human rights due diligence in determining legitimate expectations in contexts where social conflict and rights violations appear inevitable in the absence of free, prior and informed consent.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 61
- Paragraph text
- The cases also illustrate the frequent tensions that arise between the international human rights law and international investment law regimes. In Burlington Resources Inc. v. Ecuador, the contrast is striking between the findings of the Inter-American Court of Human Rights that the State used unnecessary and excessive force against the indigenous peoples, thereby threatening their existence, and the claim by the company involved in the investor-State dispute settlement that the State had not used sufficient force to protect its investment from those indigenous peoples, with neither the company nor the State seeing fit to address indigenous peoples' rights in their arguments.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 62
- Paragraph text
- The number of investor-State dispute settlement cases involving indigenous peoples' rights is growing, a fact that could be related to the speculative nature of such settlements, which encourages investors, in particular risk-taking extractive companies, to seek ever broader interpretations of the protections surrounding international investment agreements. Similarly, the expectation among risk-adverse States that the trend will continue reduces the probability that States will take urgently needed measures to recognize, protect, respect and fulfil indigenous peoples' rights, including by addressing historical injustices in relation to land claims.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 63
- Paragraph text
- The Inter-American Court of Human Rights decision in Sawhoyamaxa indigenous community v. Paraguay is illustrative of this. The State argued that it could not implement land restitution programmes aimed at guaranteeing indigenous peoples' rights because of protections afforded to investors under its bilateral investment treaty with Germany. The Court ruled that the treaty had to be interpreted in the light of the State's human rights obligations and that the taking of land for restitution to indigenous people could be justified as a "public purpose or interest". While it is one of the few cases that has attempted to reconcile obligations under international investment law and international human rights law, it offers no guidance on the extent to which the investor should be compensated or what considerations should determine when compensation is or is not required. This points to the need for further guidance from human rights bodies on these matters.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 64
- Paragraph text
- The limited and inconsistent role that tribunals attribute in their deliberations to amicus submissions of indigenous peoples also emerges from the cases. The basis in Von Pezold and Border Timbers v. Zimbabwe for rejecting the amicus submission raises a number of profound concerns should it guide future tribunals, as South American Silver suggests it should.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 65
- Paragraph text
- The notion that indigenous peoples must demonstrate "independence" from the State in relation to matters pertaining to their rights is inconsistent with the State's role as the duty-bearer in relation to those rights. Equally alarming, and contrary to international human rights law, is the tribunal's dismissal of the fundamental role of self-identification in the determination of what constitutes an indigenous people.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 66
- Paragraph text
- The tribunal essentially distanced itself from any damage that its decision could have on indigenous rights, acknowledging that its ruling could affect those rights but holding that they were outside the scope of the dispute and not part of the applicable law. This amounts to the subordination of indigenous peoples' rights to investor protections, with no option provided for participation or appeal. Such arguments go to the core of the legitimacy crisis that the international investment law system is facing. Justifications based on a lack of competence in relation to indigenous rights are further evidence of the system's deficiencies.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 67
- Paragraph text
- All of the above reflects the fact that, at its core, the investor-State dispute settlement system is adversarial and based on private law, in which affected third-party actors, such as indigenous peoples, have no standing and extremely limited opportunities to participate. Amicus submissions and participations at the request of States are grossly inadequate in a context where States and investors are involved in causing and benefiting from harm to indigenous peoples' rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 68
- Paragraph text
- In their responses to questionnaires, a number of States pointed to the approach adopted by the European Union, which is to a degree reflected in chapter 8 of the Comprehensive Economic and Trade Agreement between Canada and the European Union, as a step towards reforming dispute resolution systems. Among its improved features is a revised model for appointing State party-nominated arbitrations, eliminating conflicts of interest arising from arbitrators who also act as council and expert, and gaining access to a full appellate review after awards have been rendered. The approach of Brazil in its recent bilateral investment treaties, which do not provide access to investor-State dispute settlements and instead rely on a combination of mediation and diplomatic approaches and State to State arbitration, is also noteworthy.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 69
- Paragraph text
- In addition to acknowledging the need to reform dispute resolution systems, States emphasized the need to guarantee the regulatory space necessary for the realization of indigenous peoples' rights, including the requirement for prior consultation with the objective of free, prior and informed consent. The responses suggest that the intent and expectation of home and host States when entering into international investment agreements was not to place limitations on their ability to fulfil indigenous peoples' rights, the presumption being that the State maintains the right to regulate without facing compensation demands and that, where necessary, protections afforded to investors must be balanced in a proportionate manner against the duty to protect indigenous peoples' rights. The Special Rapporteur encourages more States to respond to her questionnaires, which are available in English, French and Spanish and will inform her final report on the issue.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 70
- Paragraph text
- In 2015, the Trans-Pacific Partnership agreement was signed by 12 countries from three continents that, together, account for a large part of global trade. Of those countries, 11 have significant populations of indigenous peoples, a growing number of which are negatively affected by large-scale foreign investment projects in their territories. Those peoples have expressed their concerns in relation to the lack of protections for their rights vis-à-vis those of foreign investors, and the imbalance in remedies. They have also criticized the absence of consultation in the negotiation of the Partnership and the lack of any human rights impact assessments. As pointed out by the Waitangi Tribunal, the failure to adequately consult on the Partnership "harms the relationship [with indigenous peoples] and increases the probability of a low-trust and adversarial relationship going forward". In that regard, indigenous peoples are demanding good-faith consultations prior to ratification as they fear that, unless adequate protections are included, the Partnership will facilitate projects and activities that lead to further conflict and serious violation of rights to lands, territories and natural resources, including their rights to traditional knowledge.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 71
- Paragraph text
- The Trans-Pacific Partnership includes no reference to human rights. While it does refer to the right to regulate in relation to "environmental, health or other regulatory objectives", it qualifies this by holding that measures have to be "consistent with" its investment chapter, effectively reducing the scope of this right to that determined by expansive interpretations of broad investment protections.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Health
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 72
- Paragraph text
- The Maori of New Zealand are the only indigenous people addressed in the exception chapter. The provision permits "favourable treatment to Maori" and excludes interpretation of the Treaty of Waitangi from investor-State dispute settlements. However, the Maori regard the exception to be inadequate. Having expressed its concerns in relation to the potential impacts of investor-State dispute settlements, the Waitangi Tribunal recommended that the Maori participate in the appointment of arbitrators where their rights are affected.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 73
- Paragraph text
- Implicit in the Maori Trans-Pacific Partnership exception is the recognition that their rights, and by extension those of other indigenous peoples, can be negatively affected by investor protections under the Partnership and its investor-State dispute settlement mechanism. So too is the fact that those protections afforded to the Maori under the exception are essentially denied to all other affected indigenous peoples owing to the absence of exceptions for them.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 74
- Paragraph text
- One of the issues that indigenous peoples have highlighted in relation to the Partnership is its impact on their control over their traditional knowledge, as the rights of corporations that hold intellectual property rights are strengthened in the relevant chapter of the Partnership, while traditional knowledge rights that fall outside of the intellectual property regime are afforded no protection. Experience to date demonstrates that, in the absence of adequate safeguards, traditional knowledge can be commercialized. Similar concerns exist in relation to genetic resources and biodiversity.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 75
- Paragraph text
- An exception, allowing parties to take measures in relation to traditional knowledge in accordance with their international obligations, is included in the exception chapter, but in practice it can be ignored or interpreted to have little relevance by arbitrators. Requirements under international human rights law and international environmental law in relation to equitable benefit sharing and a general requirement for free, prior and informed consent of indigenous peoples were not included in the Trans-Pacific Partnership, with consent only referenced where national law already requires it.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 76
- Paragraph text
- The effects of the Trans-Pacific Partnership, whereby investor rights are entrenched and indigenous rights are constrained, could have a particularly profound impact on indigenous peoples in the many resource-rich Partnership countries, given the huge number of extractive industry, forestry, palm oil and energy companies based in Australia, Canada, Malaysia, New Zealand and the United States. These resources are often in areas of ongoing dispute and conflict between indigenous peoples and foreign investors.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 77
- Paragraph text
- Foreign investment can contribute to economic growth and development. However, there is a long-standing debate as to the conditions necessary for developing countries to benefit from such investment, and the extent to which international investment agreements facilitate those conditions.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 78
- Paragraph text
- Modern international public order requires development to be sustainable and consistent with human rights and democratic principles. While some initial steps have been taken to attempt to incorporate those policy objectives into international investment agreements, through reference to the unencumbered right of the State to regulate in the public interest in the preambles and substantive provisions of model bilateral investment treaties, references to human rights in those agreements are rare and the broader response of the international investment law regime to date has been inadequate. Its legitimacy continues to be questioned as a result.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 79
- Paragraph text
- The research that the Special Rapporteur conducted in preparing the present report, including workshops and questionnaires, indicates that foreign and domestic investment has a serious impact on indigenous peoples' rights, even in the absence of international investment agreements. Guaranteeing indigenous peoples' rights will therefore require not only reforms within the international investment law regime, but also far more proactive engagement on the part of States in terms of realizing their human rights obligations. However, her research also indicates that such agreements can, and in a growing number of contexts do, compound, contribute to and exacerbate those serious impacts.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 80
- Paragraph text
- As concluded by the Waitangi Tribunal in the context of the Trans-Pacific Partnership, even when an exception is included with the intention of protecting indigenous peoples' rights: We are not in a position to reach firm conclusions on the extent to which investor-State dispute settlements under the Trans-Pacific Partnership may prejudice Maori Treaty rights and interests, but we do consider it a serious question worthy of further scrutiny and debate and dialogue between the Treaty partners. We do not accept the Crown's argument that claimant fears in this regard are overstated.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 81
- Paragraph text
- Harmonizing international investment law with international human rights law is a fundamental precondition to addressing this legitimacy crisis, to respecting indigenous peoples' rights and to ensuring a coherent body of international law. By ensuring that international investment agreements do not restrict regulatory space, and by taking measures to protect indigenous peoples' rights in the context of investor activities, States can prevent costly investor-State dispute settlement cases and eliminate uncertainty around the limits that international investment law places on both State and indigenous peoples' sovereignty. In addition, by invoking international human rights law arguments in settlement disputes, States will increase the pressure on investors to conduct adequate human rights due diligence prior to initiating settlement disputes.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 82
- Paragraph text
- A synergy therefore exists between protecting the State's right to regulate in the public interest and ensuring the protection of indigenous peoples' rights, as recognizing indigenous peoples' rights provides a means through which States can limit the abrogation of control over decisions pertaining to natural resources to foreign investors and to tribunals charged with protecting their interests.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 83
- Paragraph text
- The Special Rapporteur believes that it is possible to develop a system of international investment law that reduces risk to indigenous peoples' rights and serves to benefit them and the State, while providing greater investment security to foreign investors. Both short- and longer-term reforms, at the level of international investment law and in domestic regulatory frameworks of home and host States, and in the policies, practices and obligations of investors, will be necessary in order to realize this.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 84
- Paragraph text
- Strong arguments exist for radically reforming the system of investor-State dispute settlements and to reform the investment dispute system. Mechanisms aimed at resolving disputes between investors and States that extend to affected communities and individuals through the use of fact-finding and mediation, and possibly through judicial powers, modelled on a body such as the Inter-American Court of Human Rights, have been proposed.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 85
- Paragraph text
- The outdated belief of States that they are in a position to guarantee security for investors while ignoring the human rights of indigenous peoples must be debunked. Investors must take responsibility for assessing the social and political risk associated with their investments. Otherwise, their expectations cannot be legitimate. Dispute resolution systems can no longer exclude those who are most affected by the disputes they purportedly resolve, otherwise their awards lack legitimacy. Full and effective participation of indigenous peoples in accordance with their right to give or withhold consent, together with ensuring equity of remedies, are key principles in moving beyond the current unbalanced and incoherent system. The Special Rapporteur encourages cooperation and creative thinking in that regard and looks forward to developing her final report, in which she will examine the interplay of investor protections and indigenous peoples' rights and consider how human rights and sustainable development approaches can help inform the future of international investment law.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 86a
- Paragraph text
- International investment agreements must include properly constructed clauses in relation to the right to regulate. These clauses should: (a) Avoid the use of qualifying language with respect to the right to regulate in the public interest;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 86b
- Paragraph text
- International investment agreements must include properly constructed clauses in relation to the right to regulate. These clauses should: (b) Preserve that right in a manner explicitly consistent with the State duties to protect, respect and fulfil indigenous peoples' rights in accordance with international law obligations, including international human rights law;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 86c
- Paragraph text
- International investment agreements must include properly constructed clauses in relation to the right to regulate. These clauses should: (c) Apply to all investor protection standards, such as fair and equitable treatment, full protection and security and indirect expropriation;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 86d
- Paragraph text
- International investment agreements must include properly constructed clauses in relation to the right to regulate. These clauses should: (d) Be explicit that bona fide measures in the pursuit of human rights do not constitute a breach of international investment agreements and are non-compensable.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 87
- Paragraph text
- Mechanisms should be developed to amend existing international investment agreements to include the right to regulate and to mandate respect for human rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 88
- Paragraph text
- International investment agreements should include respect for human rights as a policy objective in their preambles.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 89
- Paragraph text
- Where the right to regulate is not sufficiently protected in international investment agreements, general exceptions for measures aimed at the promotion of equality and addressing long-term historic discrimination, or specific exceptions and investor-State dispute settlement carve-outs in relation to measures addressing indigenous peoples' rights, should be included. Specific exceptions should be developed in cooperation with indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 90a
- Paragraph text
- Jurisdiction clauses should prohibit claims taken: (a) In relation to investments that do not comply with the law, including international human rights law;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 90b
- Paragraph text
- Jurisdiction clauses should prohibit claims taken: (b) By shell or mailbox companies established in jurisdictions purely or primarily to take advantage of such protections in international investment agreements.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 91
- Paragraph text
- Investment protection, such as fair and equitable treatment, full protection and security and expropriation prohibitions, should only apply to established investments. They should not apply before consultations have been conducted to obtain indigenous peoples' free, prior and informed consent or before contractual agreements are entered into with the concerned indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 92
- Paragraph text
- International investment agreements and interpretative text should entitle States to file counterclaims for affirmative relief arising from investor interference with their obligations under international human rights law.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 93a
- Paragraph text
- In accordance with the recommendations of the Special Rapporteur in her 2015 report to the General Assembly (A/70/301): (a) Appropriate consultation procedures and mechanisms should be developed in cooperation with indigenous peoples in relation to the drafting, negotiation and approval of international investment agreements, and their right to consultation should be guaranteed prior to the ratification of the Trans-Pacific Partnership;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 93b
- Paragraph text
- In accordance with the recommendations of the Special Rapporteur in her 2015 report to the General Assembly (A/70/301): (b) Human rights impact assessments should be conducted of all trade and investment agreements, following the impact assessments carried out as part of the Guiding Principles on Business and Human Rights developed by the Special Rapporteur on the right to food.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 94
- Paragraph text
- States should negotiate international investment agreements in accordance with their international cooperation obligations under the International Covenant on Economic, Social and Cultural Rights and in keeping with the "clean hands" doctrine in relation to indigenous peoples' rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 95
- Paragraph text
- States should negotiate international investment agreements in accordance with their international cooperative on obligations under international human rights law, and in keeping with the "clean hands" doctrine, through the conduct of human rights impact assessments, appropriate due diligence and knowledge generation in relation to all potential impacts on indigenous peoples' rights, both at home and abroad.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96a
- Paragraph text
- Investment dispute settlement bodies addressing cases having an impact on indigenous peoples' rights should promote the convergence of human rights and international investment agreements by: (a) Adopting approaches based on international human rights law when weighing up all rights related to a given dispute, addressing issues of necessity based on human rights imperatives such as the elimination of racial discrimination, applying the principle of proportionality and acknowledging the profound impacts of large-scale projects on indigenous peoples' self-determination rights and well-being;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96b
- Paragraph text
- Investment dispute settlement bodies addressing cases having an impact on indigenous peoples' rights should promote the convergence of human rights and international investment agreements by: (b) According due consideration to international human rights law when interpreting investment protections and the definition of an investment and ensuring that their decisions respect the State's duty to regulate under that law, irrespective of whether the right to regulate is explicitly affirmed in the relevant international investment agreements;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96c
- Paragraph text
- Investment dispute settlement bodies addressing cases having an impact on indigenous peoples' rights should promote the convergence of human rights and international investment agreements by: (c) Taking into account the human rights responsibilities of investors as outlined in the Guiding Principles on Business and Human Rights;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96d
- Paragraph text
- Investment dispute settlement bodies addressing cases having an impact on indigenous peoples' rights should promote the convergence of human rights and international investment agreements by: (d) Ensuring that applicable law includes all international human rights law treaties ratified by either State party, and the United Nations Declaration on the Rights of Indigenous Peoples as an interpretative guide for their application to indigenous peoples;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96e
- Paragraph text
- Investment dispute settlement bodies addressing cases having an impact on indigenous peoples' rights should promote the convergence of human rights and international investment agreements by: (e) Attaching weight to the legitimate expectations of States in relation to their ability to protect indigenous peoples' rights;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96f
- Paragraph text
- Investment dispute settlement bodies addressing cases having an impact on indigenous peoples' rights should promote the convergence of human rights and international investment agreements by: (f) Recognizing the right of intervention of the indigenous peoples concerned through amicus submissions and by according full consideration to their arguments;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96g
- Paragraph text
- Investment dispute settlement bodies addressing cases having an impact on indigenous peoples' rights should promote the convergence of human rights and international investment agreements by: (g) Interpreting investor State contract clauses, including stabilization clauses, covered by such agreements through umbrella clauses, in a manner that does not place limitations on the State's ability to protect indigenous peoples' rights;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96h
- Paragraph text
- Investment dispute settlement bodies addressing cases having an impact on indigenous peoples' rights should promote the convergence of human rights and international investment agreements by: (h) Being cognizant of foreign corporations' contribution to violations of indigenous peoples' rights and the jurisdictional, financial, cultural, technical, logistical and political obstacles facing indigenous peoples when attempting to hold them to account;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96i
- Paragraph text
- Investment dispute settlement bodies addressing cases having an impact on indigenous peoples' rights should promote the convergence of human rights and international investment agreements by: (i) Avoiding awards that contribute to regulatory chill in relation to indigenous peoples' rights or effectively endorse corporate involvement in indigenous rights' harms;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96j
- Paragraph text
- Investment dispute settlement bodies addressing cases having an impact on indigenous peoples' rights should promote the convergence of human rights and international investment agreements by: (j) Refusing to accept commercial confidentiality in all but the most extreme situations as a barrier to transparency in the context of regulatory actions related to fundamental human rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 97a
- Paragraph text
- States should: (a) Promote the above practices through interpretative text;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 97b
- Paragraph text
- States should: (b) Ratify the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 97c
- Paragraph text
- States should: (c) Appoint arbitrators with knowledge of indigenous peoples' rights and cooperate jointly to interpret relevant international investment agreements in relation to indigenous peoples' rights;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 97d
- Paragraph text
- States should: (d) Avoid including umbrella clauses in bilateral investment treaties;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 97e
- Paragraph text
- States should: (e) Strengthen their human rights arguments when responding to investor-State dispute settlement claims, emphasizing their duty to regulate in order to protect indigenous peoples' rights and the corporate responsibility to respect those rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 98a
- Paragraph text
- International investment agreements should: (a) Address the corporate responsibility to respect human rights, including the requirement to conduct human rights due diligence, and to prevent, mitigate and remedy human rights' harms in which they may be involved, in particular in relation to vulnerable groups such as indigenous peoples;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 98b
- Paragraph text
- International investment agreements should: (b) Protect only bona fide investments. If evidence exists of inadequate human rights due diligence or corporate contribution to indigenous rights harms, there should be express provisions for the denial of the benefits of investor protection in terms of access to investor-State dispute settlements through a duty on tribunals to decline jurisdiction, with mechanisms to vitiate corporate rights in such contexts;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 98c
- Paragraph text
- International investment agreements should: (c) Require public reporting by corporations in relation to the potential impact of their operations on indigenous peoples' rights and measures taken to prevent and mitigate such impacts.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 99a
- Paragraph text
- States should consider: (a) Incorporating the provisions of international investment agreements in relation to corporate responsibility into domestic law to enable their enforcement;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 99b
- Paragraph text
- States should consider: (b) Developing a mechanism for reviewing corporate compliance with their responsibility to respect human rights, drawing from existing processes, including United Nations treaty and charter bodies, OECD national contact points and international financial institutions' inspection panels, with a view to ensuring due weight is given to findings in any related investment dispute claims.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 100a
- Paragraph text
- Investors should: (a) Operate under the assumption that regulatory frameworks continuously evolve to progressively realize the human rights of indigenous peoples, as explicitly required by international human rights law;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 100b
- Paragraph text
- Investors should: (b) Support the transition toward a model of investment that promotes the realization of human rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 101
- Paragraph text
- International and regional human rights bodies should continue to issue recommendations addressing the responsibilities of home and host States to regulate corporate behaviour and consider developing general recommendations or advisory opinions on the responsibility of home States in relation to indigenous peoples' rights and the intersection of investment protection and human rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 102
- Paragraph text
- Home States should adopt and enforce extraterritorial regulation in relation to the impacts of their corporations on indigenous peoples overseas and ensure they are held to account for any rights violations, including the denial of protections under international investment agreements.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 103a
- Paragraph text
- Host States must comply with their duty to regulate in relation to indigenous peoples' rights to: (a) Lands, territories and resources, necessitating demarcation based on customary land tenure, possession and use;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 103b
- Paragraph text
- Host States must comply with their duty to regulate in relation to indigenous peoples' rights to: (b) Restitution of land, territories and resources taken without free, prior and informed consent;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 103c
- Paragraph text
- Host States must comply with their duty to regulate in relation to indigenous peoples' rights to: (c) Self-determination, by virtue of which they can determine their own social, cultural and economic development and maintain and develop their institutions, customs and decision-making processes;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 103d
- Paragraph text
- Host States must comply with their duty to regulate in relation to indigenous peoples' rights to: (d) Good-faith prior consultation to give or withhold free, prior and informed consent in relation to measures affecting their rights;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 103e
- Paragraph text
- Host States must comply with their duty to regulate in relation to indigenous peoples' rights to: (e) Their beliefs and traditional knowledge;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 103f
- Paragraph text
- Host States must comply with their duty to regulate in relation to indigenous peoples' rights to: (f) A permanent and enduring way of life of their own choosing.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 104
- Paragraph text
- Governmental bodies responsible for protecting indigenous peoples' rights should ensure that information is made available to foreign investors addressing the need to respect indigenous peoples' rights and the State's obligation to progressively realize those rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 105
- Paragraph text
- Indigenous peoples could consider publicly declaring their expectations with regard to any potential investment projects in their territories, for example, through consultation and free, prior and informed consent protocols, thereby influencing potential investor's legitimate expectations.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 106
- Paragraph text
- International financial institutions, including the World Bank, must implement their performance standards in a manner consistent with developments in international human rights law standards, including in relation to the requirement for free, prior and informed consent.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 107
- Paragraph text
- In order to suspend or terminate an international investment agreement that affects indigenous peoples' rights, States could invoke article 62 (2) of the Vienna Convention on the law of treaties in relation to a fundamental change in circumstances, such as the recognition of indigenous peoples within their borders. To do so, they would need to show that: (a) such recognition was not foreseen when the agreement was entered into, which could be explained by the evolving understanding of States in Asia and Africa as to what constitutes an indigenous people in those regions; (b) the change radically transforms the extent of obligations still to be performed under the treaty, as could be the case given the requirement to obtain indigenous peoples' free, prior and informed consent to investment plans; and (c) the change is not the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty, a threshold that is not met by the recognition of indigenous peoples' rights within the host State.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 108
- Paragraph text
- Longer-term reform of international investment law necessitates a shift in thinking about the purpose and nature of international investment agreements and dispute resolution mechanisms. Rather than viewing their role as purely, or even perhaps primarily, to protect investor rights, they need to be understood within a broader public policy and the international law framework, commensurate with our stage of economic globalization and interdependence, such that legitimate investor protections work in harmony with indigenous and human rights rather than acting as a constraint upon long-term public policy objectives and serving to further fragment the international order. This will involve redesigning aspects of the international investment law system that are not fit for purpose. The objective should be to protect the legitimate rights of investors and the need for reasonable predictability, while also guaranteeing the State's right to regulate and protect fundamental human rights, and ensuring that the rights of the most vulnerable are not subordinated to the economic interests of the most powerful.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Assessment of the implementation of the United Nations Declaration on the Rights of Indigenous Peoples on the occasion of its tenth anniversary.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Legal status
- Non-negotiated soft law
- Document type
- Special Procedures' report
- Year
- 2018
- Document code
- A/73/176
Document
Attacks and criminalization of indigenous human rights defender. Availability of prevention and protection measures
- Body
- Special Rapporteur on the rights of indigenous peoples
- Legal status
- Non-negotiated soft law
- Document type
- Special Procedures' report
- Year
- 2018
- Document code
- A/HRC/39/17
Document
Conservation measures and their impact on indigenous peoples’ rights
- Body
- Special Rapporteur on the rights of indigenous peoples
- Legal status
- Non-negotiated soft law
- Document type
- Special Procedures' report
- Year
- 2016
- Document code
- A/71/229
Document
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 8
- Paragraph text
- The impact that conservation initiatives have on indigenous peoples has been a constant and recurring theme since the establishment of the mandate of the Special Rapporteur on the rights of indigenous peoples in 2001. The consequences indigenous peoples have faced in the wake of evermore expanding protected areas have been raised by respective special rapporteurs during numerous country visits and communications to governments.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 9
- Paragraph text
- The three Special Rapporteurs on the rights of indigenous peoples have, since the creation of the mandate, paid particular attention to the human rights violations that conservation measures have caused indigenous peoples worldwide, notably by the expropriation of land, forced displacement, denial of self-governance, lack of access to livelihoods and loss of culture and spiritual sites, non-recognition of their own authorities and denial of access to justice and reparation, including restitution and compensation.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Movement
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 10
- Paragraph text
- The focus of the present report on terrestrial protected areas and, to a limited extent, on World Heritage sites, is not intended to diminish the onus on the key factors causing displacement of indigenous peoples from their lands and the overall violations of their rights to lands and territories by extractive industries, agribusiness expansion and mega infrastructure development. Previous special rapporteurs have written thematic reports on extractive industries and violations of the right to development of indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 11
- Paragraph text
- While the conservation community is in the process of adopting conservation measures that respect the human rights of indigenous peoples, considerable implementation gaps remain and new threats to human rights-based conservation are emerging. The Special Rapporteur has therefore decided that it is a timely and important moment to explore this topic in further depth. The present report charts legal developments and commitments and measures taken made to advance a human rights-based paradigm in conservation, while also identifying certain key remaining challenges. The report concludes with recommendations on how conservation, in policy and practice, can be developed in a manner which respects indigenous peoples' rights and enhances sustainable conservation.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 12
- Paragraph text
- A protected area is a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives. Protected areas consist of many different conservation modalities, among them national parks and forests, wildlife refuges, marine areas, private and non-governmental organization (NGO)-governed preserves, indigenous peoples' protected areas, community lands and other areas where the protection of nature and the practice of sustainable livelihoods foster ecosystem integrity.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 13
- Paragraph text
- Protected areas have the potential of safeguarding biodiversity for the benefit of all humanity; however, these have also been associated with human rights violations against indigenous peoples in many parts of the world. For over a century, conservation was carried out with the aim of vacating protected areas of all human presence, leading to cultural destruction and large-scale displacements of indigenous peoples from their ancestral lands in the name of conservation. Past conservation measures caused complex and multiple violations of the collective and individual human rights of indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 14
- Paragraph text
- The expanse of protected areas nearly doubled over a period two decades, from 8.7 million square kilometres in 1980 to 16.1 million square kilometres in 2000. There is significant spatial overlap between the traditional lands of indigenous peoples and areas which retain the highest levels of high-biodiversity. Traditional indigenous territories encompass around 22 per cent of the world's land surface and they coincide with areas that hold 80 per cent of the planet's biodiversity. It has been estimated that 50 per cent of protected areas worldwide has been established on lands traditionally occupied and used by indigenous peoples and that this proportion is highest in the Americas, where it may exceed 90 per cent in Central America. Bolivia, Brazil, Chile and Colombia, as well as Canada and the United States of America, all have a high percentage of protected areas on indigenous traditional territory. Overlap is also significant in Australia and New Zealand. Most of the protected areas in India, Nepal and the Philippines include the territories of indigenous peoples. Botswana, Cameroon, Kenya, Namibia, South Africa and the United Republic of Tanzania are among the African countries in which large parts of the protected areas are located on indigenous peoples' ancestral domains.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 15
- Paragraph text
- Indigenous peoples retain strong spiritual links with the plants, trees and animals on their lands and protecting their lands is a sacred duty. Yet, indigenous peoples may not refer to themselves as conservationists and this has resulted in a considerable lack of acknowledgement within the conservation community of indigenous peoples' contribution to conservation. There is increasing recognition that the ancestral lands of indigenous peoples contain the most intact ecosystems and provide the most effective and sustainable form of conservation. Studies have demonstrated that the territories of indigenous peoples who have been given land rights have been significantly better conserved than the adjacent lands. Yet, to date, the important role played by indigenous peoples as environmental guardians has still failed to gain due recognition. According to the United Nations Environment Programme World Conservation Monitoring Centre, in 2014, less than 5 per cent of protected areas worldwide were governed by indigenous peoples and local communities.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 16
- Paragraph text
- Conservation efforts traditionally were state-centric and based on expropriation of lands subsequently placed under government control. Indigenous peoples were displaced, denied self-governance, deprived of access to natural resources for their livelihood and their traditional and spiritual links to ancestral land were disrupted. Marginalized and impoverished indigenous peoples have continued to struggle for access to their territories and tenure rights, resulting in enduring friction and conflict.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 17
- Paragraph text
- From the conservation perspective, the loss of the guardianship of indigenous peoples and the placing of their lands under the control of government authorities who have often lacked the capacity and political will to protect the land effectively, has left such areas exposed to destructive settlement, extractive industries, illegal logging, agribusiness expansion and large-scale infrastructure development. Even where national policies and laws require strict protection for protected areas, in many countries State agencies have still authorized mining, oil and gas extraction, logging, dams and reservoirs, highways and other projects in direct conflict with conservation goals.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 18
- Paragraph text
- Mobilization of indigenous peoples' movements has led to advances in international law recognizing their collective right to their traditional lands and growing awareness among conservationists of the important role indigenous peoples play in conserving biodiversity are factors which have led to relatively recent, yet significant, shifts towards greater recognition of indigenous peoples' rights in the context of conservation. Leading conservation organizations have adopted commitments and policies seeking to adopt a "new paradigm" of undertaking conservation, while respecting the rights of indigenous peoples. However, significant gaps remain between these policies and their effective implementation on the ground.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 19
- Paragraph text
- Furthermore, among the principal challenges that indigenous peoples continue to face globally are difficulties in gaining legal recognition of collective ownership over their ancestral lands, especially when these have already been declared protected territories. National legislation is often contradictory. Laws pertaining to conservation and forestry are commonly not harmonized with subsequent national legislation and international law asserting the rights of indigenous peoples and the authorities responsible for enforcement of the different laws frequently fail to coordinate.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 20
- Paragraph text
- The aim of the present section is to chart and affirm the existing legal obligations to guarantee indigenous peoples' rights in the context of conservation. The rights of indigenous peoples stem from various branches of international law and have developed through international human rights law, international labour law and international environment law. International and regional human right jurisprudence have further advanced the application of key indigenous peoples' rights in conservation. Taking stock of the standing in international law of indigenous peoples' rights in relation to conservation thus requires consideration of the interrelatedness of the different rights, notably self-determination, cultural and property rights, and appreciation of the complementarity of international human rights law and international environment law.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 21
- Paragraph text
- While human rights-based approaches to conservation have become widely accepted among conservation NGOs, their internal policy documents are at times elusive regarding the specific rights of indigenous peoples. This underlines the importance of reiterating the key applicable legal provisions.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 22
- Paragraph text
- Self-determination is a right in itself and is also a necessary pre-condition for the fulfilment of other human rights. The right is a fundamental principle in international law and has been interpreted in a variety of legal contexts. Self determination is considered an overarching right to indigenous peoples because of its cross-cutting nature and because it affirms their right to freely pursue their economic, social and cultural development. It is crucial to the issue of land conservation efforts because of its links with land rights and the right to participate within processes and decisions affecting them, such as the establishment and management of protected areas. The right to self-determination is enshrined within both the International Covenant on Civil and Political Rights (1966, article 1) and the International Covenant on Economic, Social and Cultural Rights (1966, article 1) and is included in the United Nations Declaration on the Rights of Indigenous Peoples (2007, article 3). Human rights treaty bodies, notably the Human Rights Committee, the Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Racial Discrimination, have all affirmed, in analogous terms, that States must recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands and to participate in the management and conservation of the associated natural resources. The Committee on Economic, Social and Cultural Rights and the Human Rights Committee have underlined the importance of the provision of land titles on the ancestral lands by linking the right to self-determination with cultural rights (article 27 of the International Covenant on Civil and Political Rights and article 15 of the International Covenant on Economic, Social and Cultural Rights). The Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International Labour Organization (ILO) enshrines land rights for indigenous peoples in articles 14 to 19). The United Nations Declaration on the Rights of Indigenous Peoples, which consolidates the rights of indigenous peoples already recognized in other human rights instruments and through the jurisprudence of the international human rights treaty bodies, affirms the right of indigenous peoples to own and control their lands (articles 25, 26 and 27).
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 23
- Paragraph text
- Respect for the right to participate and to free, prior and informed consent are sine qua non elements of effective advancement of indigenous peoples' rights in practice. ILO Convention No. 169 sets out the duty of States to consult indigenous peoples through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly (article 6). Human rights treaty bodies have consistently affirmed the principle of free, prior and informed consent of indigenous peoples in matters relating to their rights and interests and specifically in relation to their ancestral lands and conservation.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 24
- Paragraph text
- The Declaration on the Rights of Indigenous Peoples makes specific reference to conservation in article 29, which states that indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources and that States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination. The Declaration furthermore states that indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources and that States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources (article 32).
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 25
- Paragraph text
- Article 12(1) of the International Covenant on Civil and Political Rights establishes the right to liberty of movement and freedom to choose one's residence. This provision includes protection against all forms of forced internal displacement. Persons whose rights or freedoms under the Covenant are violated shall have an effective remedy, as set out in article 2(3). In relation to forced evictions, the Committee on Economic and Social and Cultural Rights has affirmed that States must refrain from forced evictions and ensure that the law is enforced against its agents or third parties who carry out forced evictions. The Guiding Principles on Internal Displacement emphasize that States are under a particular obligation to protect against the displacement of indigenous peoples and other groups with a special dependency on and attachment to their lands (principle 9). Due to the special relationship that indigenous peoples have with their land and the profound impact forced displacement has on their survival, human rights treaty bodies have consistently expressed concerns over the forcible displacement of indigenous peoples and urged States to provide reparation, with emphasis on the obligation to provide restitution of their original lands. Reparation measures should be provided in accordance with international standards and, where appropriate, should entail elements of restitution, compensation, rehabilitation, satisfaction and guarantees of non-recurrence.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Movement
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Persons on the move
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 26
- Paragraph text
- ILO Convention No. 169 (article 16) and the Declaration on the Rights on Indigenous Peoples (article 10) stipulate that indigenous peoples shall not be forcibly removed from their lands unless they have provided their free, prior and informed consent. Should such violations have occurred, they have the right to fair reparation including restitution and compensation and, where possible, the option of returning to their lands. Article 28 of the Declaration furthermore stresses the right of indigenous peoples to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 27
- Paragraph text
- The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, with particular reference to property rights (article 21) of the American Convention on Human Rights, have provided key jurisprudence on the rights of indigenous peoples to communal lands, including in the context of protected areas. The Awas Tingni v. Nicaragua case decided by the Inter-American Court of Human Rights in 2001 set an important precedent as it was the first binding judgment, confirming that indigenous communal land rights arise by virtue of traditional occupation despite the lack of official legal title. The Court has furthermore held that indigenous peoples maintain their property rights even when they have been forced to leave or have otherwise lost possession of their traditional lands, including where their lands have been expropriated or transferred to third parties, unless this was done consensually and in good faith.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 28
- Paragraph text
- Of particular importance to the rights of indigenous peoples in the context of conservation is the judgment of the Court in the Kaliña and Lokono Peoples v. Suriname case in November 2015, relating to three nature reserves established on their ancestral territory which partly prevented their access. The judgment ordered the State to implement a series of guarantees of non-repetition, including the legal recognition of territorial and other rights of all indigenous and tribal peoples in Suriname. The Court furthermore concluded that respect for the rights of indigenous peoples may have a positive impact on environmental conservation and therefore the rights of indigenous peoples and international environmental laws should be seen as complementary rather than exclusionary rights. In February 2015, the Special Rapporteur acted as an expert witness in the case and emphasized indigenous peoples' right to effective participation in conservation management and their right to restitution for lands incorporated into protected areas without their consent. She underlined three basic principles in relation to protected areas, as follows: first, that States must recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources; second, that decision-making in relation to all aspects of protected areas must take place with indigenous peoples' effective participation and consent where any restrictions on their rights may be proposed; and third, that indigenous peoples have a right to restitution and other forms of redress where their lands have been incorporated into protected areas without their consent.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 29
- Paragraph text
- In the African human rights system, the African Commission on Human and People's Rights held in the case of Endorois Welfare Council v. Kenya that the rights of the Endorois had been violated when they were denied access to their traditional lands after the lands were turned into a game reserve in 1973. The Commission found that the Kenyan State was obliged to recognize the communal land rights of the Endorois indigenous peoples and provide compensation and restitution by returning the lands or by providing alternative lands of equal extent and quality in agreement with the indigenous community. Importantly, the Commission found that, although their land had become a game reserve, the Endorois were its ancestral guardians and thus best equipped to maintain its delicate ecosystem and that their alienation from their land threatened their cultural survival and thus the encroachment was not proportionate to the public need.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
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Conservation measures and their impact on indigenous peoples’ rights 2016, para. 30
- Paragraph text
- The Convention on Biological Diversity was adopted in 1992 and, as at 5 July 2016, had gained the widespread support of 196 Parties. The treaty refers to indigenous peoples' knowledge, innovations and practices for the conservation and customary use of biological diversity. Article 8 (j) of the Convention commits States parties to respect and maintain the knowledge, innovations and practices of indigenous and local communities which are relevant for conservation and sustainable use of biological diversity. The Convention, however, fails to contain explicit recognition of the human rights of indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 31
- Paragraph text
- Protected areas are among the cross-cutting issues addressed under the Convention on Biological Diversity. In 2004, the seventh meeting of the Conference of the Parties to the Convention adopted a programme of work on protected areas. It states that the establishment, management and monitoring of protected areas should take place with the full and effective participation of, and full respect for the rights of, indigenous peoples consistent with national law and applicable international obligations. In the programme of work, parties are requested to ensure that any resettlement of indigenous communities as a consequence of the establishment or management of protected areas will only take place with their prior informed consent that may be given according to national legislation and applicable international obligations. In 2014, the Conference of the Parties adopted a decision which highlighted the requirement that protected areas and management regimes must be consensual and participatory if indigenous peoples' rights are to be respected. It also recognized the contribution of indigenous peoples' own conservation initiatives within their territories to the effective conservation of important biodiversity sites.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 32
- Paragraph text
- In view of the targets set by the parties to the Convention to expand protected area coverage to at least 17 per cent of terrestrial and inland water areas and 10 per cent of coastal and marine areas by 2020, the Special Rapporteur stresses that States and conservation organizations need to implement measures to recognize the rights of indigenous peoples as a matter of priority.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 33
- Paragraph text
- Conservation protected areas were initially established through the expropriation of the lands and territories of indigenous peoples and local communities. Colonial and post-colonial administrations around the world claimed common land for the State, without regard for the existing rights of traditional ownership and use under customary tenure. Such expropriated land was then allocated to new owners for new uses, such as settlement, exploitation, and conservation. In establishing the first "modern" protected areas in 1872 (Yellowstone National Park), and in 1890 (Yosemite National Park), the Government of the United States of America violently expelled the Native Americans who lived in and depended on the natural resources in those areas. This approach was influenced both by the perception of parks as pristine "wildernesses," devoid of human occupation and use, and by the interests of lobbies wanting to develop parks for tourism. Native peoples were seen as incompatible with those interests.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
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Conservation measures and their impact on indigenous peoples’ rights 2016, para. 34
- Paragraph text
- Such protected areas were based on the following assumptions: protected areas should be created and governed by States; the goal of protected areas should be strict nature preservation with emphasis on biodiversity conservation and protected area management required protected areas to be uninhabited and without human use of natural resources. In its worst forms, coercive force was considered legally and morally justified to remove resident peoples and protect biodiversity.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 35
- Paragraph text
- The exclusionary "fortress" approach to protected-area management spread across North America, to Africa, Australia, New Zealand, the Russian Federation and to parts of Asia and Latin America. It remained the dominant model of protected-area management for more than a century and its State-centric legacy still has significant impact on today's conservation efforts. Although a full accounting will never be possible, owing to lack of accurate records, there is abundant evidence that large numbers of indigenous persons were dispossessed. Estimates of the number that may have been displaced worldwide run into the millions.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 36
- Paragraph text
- From the perspective of indigenous peoples, the creation of protected areas was perceived as colonialist, as the consequences for indigenous peoples who experienced them spelled subjugation and the loss of lands, autonomy and self-governance, livelihood resources as well as the rupture of cultural and spiritual links. Protected areas under State control imposed new laws and forms of control by Government institutions. In this sense, protected areas were seen as a vehicle for coercive assimilation by indigenous peoples. Many of the egregious human rights violations against indigenous peoples which took place in the name of conservation occurred before the 1980s, such as forced displacement following the creation of African game parks. In many countries the ongoing legacy of these violations continues to affect their exercise of their rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 37
- Paragraph text
- New approaches to conservation have emerged during the past two decades. Indigenous peoples mobilized and started to pursue their customary land rights with the support of evolving international legal standards in favour of their rights in the 1970s and 1980s. States, in turn, began reforms to legally recognize some of these rights, notably in South America. In Colombia (1991) and in Brazil (1998) indigenous land rights became constitutionally entrenched. Protected-areas policies were gradually changed towards recognition of indigenous land rights in Australia, Canada and New Zealand. Since the mid-1990s, the Australian Government has provided native title for indigenous peoples and supported co-management or their own management of protected areas.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 38
- Paragraph text
- Protected areas in countries which have failed to undertake legal reforms and recognition of collective land rights for indigenous peoples have been marred by the highest and most persistent incidence of human rights violations against indigenous peoples. Furthermore, conservation efforts in countries where indigenous peoples remain marginalized have had the least sustainable and successful outcomes, which has prompted scrutiny of international conservation policies. Despite the fact that conservation is gradually embracing a human rights-based approach, significant challenges remain in ensuring its effective implementation.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 39
- Paragraph text
- At the global level, protected-areas policy is shaped by the International Union for Conservation of Nature (IUCN). A membership organization, as at April 2016, IUCN had 1,351 members, including 89 States, 128 government agencies, 48 affiliates, 112 international NGOs, and 974 national NGOs. The latter two categories include 12 indigenous peoples' organizations. Every four years, IUCN members meet at the World Conservation Congress, where resolutions are adopted on conservation policies, and every ten years a World Parks Congress is held to deliberate on global commitments related to protected areas. World Parks Congresses constitute the most important global forums for setting international standards and guidelines for protected areas. At the Congress held in Durban in 2003, the world's leading conservationists announced a "new paradigm" for protected areas which would respect the rights of indigenous peoples and local communities. This important shift in the approach to conservation was adopted in response to growing public opinion that conventional protected area models wrongly excluded or marginalized indigenous peoples and local communities from their governance and management.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 40
- Paragraph text
- To implement this new vision for conservation, the Durban Accord and Action Plan were adopted. Noting that the costs of the global protected area system had been inequitably borne by local communities, the Action Plan explicitly recognized the rights of indigenous peoples in relation to natural resources and biodiversity conservation and that the protected area system must take full account of the rights, interests and aspirations of indigenous peoples, as well as of their desire to have their lands, territories and resources secured and protected for their own social and cultural survival.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 41
- Paragraph text
- [The Accord called upon the Conference of the Parties to the Convention on Biological Diversity to ensure that indigenous peoples and local communities fully participate in the establishment and management of protected areas and that mechanisms be put in place to guarantee that they share the benefits from these areas. Likewise, protected area authorities were encouraged to promote the conditions and ensure the means for the effective engagement of indigenous peoples, local communities and other local stakeholders in conservation. The Action Plan relating to the recognition and guaranteeing of indigenous peoples' rights set out three major targets:] Participatory mechanisms for the restitution of indigenous peoples' traditional lands and territories that were incorporated in protected areas without their free and informed consent shall be established and implemented by 2010.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 41
- Paragraph text
- [The Accord called upon the Conference of the Parties to the Convention on Biological Diversity to ensure that indigenous peoples and local communities fully participate in the establishment and management of protected areas and that mechanisms be put in place to guarantee that they share the benefits from these areas. Likewise, protected area authorities were encouraged to promote the conditions and ensure the means for the effective engagement of indigenous peoples, local communities and other local stakeholders in conservation. The Action Plan relating to the recognition and guaranteeing of indigenous peoples' rights set out three major targets:] Protected areas shall have representatives chosen by indigenous peoples and local communities in their management proportionate to their rights and interests
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 41
- Paragraph text
- [The Accord called upon the Conference of the Parties to the Convention on Biological Diversity to ensure that indigenous peoples and local communities fully participate in the establishment and management of protected areas and that mechanisms be put in place to guarantee that they share the benefits from these areas. Likewise, protected area authorities were encouraged to promote the conditions and ensure the means for the effective engagement of indigenous peoples, local communities and other local stakeholders in conservation. The Action Plan relating to the recognition and guaranteeing of indigenous peoples' rights set out three major targets:] All existing and future protected areas shall be managed and established in full compliance with the rights of indigenous peoples, mobile peoples and local communities
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 42
- Paragraph text
- Regretfully, these three Durban Action Plan targets are still far from being achieved. However, a number of steps have been taken by the IUCN community towards their achievement and new resolutions have been adopted by the World Conservation Congress, including the endorsement of the United Nations Declaration on the Rights of Indigenous People in resolution 4.052 (2008), calling upon all IUCN members to apply it in their respective activities. At the World Parks Congress held in Sydney, Australia, in 2014, IUCN members reiterated in the "Promise of Sydney Vision" their commitment to working in partnership with indigenous peoples, recognizing their long traditions and knowledge and collective rights to land, water, natural resource and culture.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 43
- Paragraph text
- Considerable critique has nevertheless been raised that effective implementation of the new paradigm has been lagging and that new policies have been slow in transferring from paper to practice. Leading conservation organizations have recognized their lack of progress. In 2009, IUCN and seven other international conservation NGOs launched the Conservation Initiative on Human Rights, with the aim of improving conservation policy and practice by promoting respect for human rights. The conservation organizations that are members of the Initiative have all committed to four basic principles to guide integration of human rights in each organization's policies and practices, including a commitment not to contribute to infringements of human rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 44
- Paragraph text
- In preparing the present report, the Special Rapporteur organized a consultation and invited the Conservation Initiative organizations to share information on their progress in advancing respect for indigenous peoples' rights. The responses showed overall positive developments and a strong awareness of the importance of building partnerships with indigenous peoples based on explicit recognition of, and respect for, their rights. As stated by Conservation International, "stewards of some of the most biodiverse places on Earth, indigenous peoples play a unique and invaluable role in conserving nature's vital resources and they often draw on their own traditional knowledge to design management practices that are best suited for their lands". The Special Rapporteur also held consultations with indigenous peoples on the theme.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 45
- Paragraph text
- IUCN has, through its World Conservation Congress, adopted numerous resolutions affirming indigenous peoples' rights; however, each individual IUCN member organization designs and implements their own internal policies and guidelines. The majority of the large conservation organizations have adopted specific policies on indigenous peoples' rights, and several have developed specific guidelines on how to implement free, prior and informed consent in their projects. The World Wide Fund for Nature (WWF) was the first international conservation organization to adopt principles on indigenous peoples' rights, already in 1996.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 46
- Paragraph text
- Most conservation organizations recognize that additional resources are needed for the dissemination of policies and for training of staff at the national level in order to advance the practical application of policies and guidelines on indigenous peoples' rights. Furthermore, monitoring of compliance and progress in advancing indigenous peoples' rights in practice still remains sorely lacking in many conservation organizations. Without such indicators, assessments of progress cannot be properly undertaken and transparency regarding how indigenous peoples' rights are promoted in practice will remain deficient.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 47
- Paragraph text
- Among the key challenges reported by conservation organizations in advancing in implementation at the national level are non-conducive political and legal settings in which indigenous peoples are not recognized. However, given the powerful position of conservation organizations vis-à-vis authorities in developing countries with weak rule of law, they should use their leverage better and more affirmatively in order to influence national authorities and advocate for legislative reform, the application of free, prior and informed consent and the restitution of ancestral lands of indigenous peoples. As indigenous rights to customary lands, territories and natural resources have yet to be effectively recognized in numerous countries, conservation organizations can play a key role in supporting indigenous peoples in such endeavours and encourage dialogue with authorities to this end. It is thus a positive development that several conservation organizations indicate that they are undertaking such efforts in numerous countries. The Special Rapporteur, however, urges that such engagement be significantly expanded to support legal and policy shifts in countries which still fail to recognize indigenous peoples' rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 48
- Paragraph text
- Examples of best practice reported include the mapping exercise facilitated by IUCN in Central America, which identified that the bulk of remaining forests and marine resources are within or bordering indigenous traditional lands. According to IUCN, the initiative provided a clear indication of the value and importance of supporting indigenous rights and tenure to meet conservation goals. WWF Indonesia states that, over the past five years, it has moved from including work with indigenous peoples under conservation targets to making it a specific target in itself, notably through working directly with indigenous peoples to document and integrate their territories in government plans, with a view to building stronger recognition of indigenous peoples' rights and more effective and equitable governance. WWF Cameroon is advocating with the Government for formalized national free, prior and informed consent requirements and guidelines. Additional examples of positive practices reported are support by transnational corporations for securing collective land rights in Indonesia and the United Republic of Tanzania.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 49
- Paragraph text
- Most conservation organizations lack complaints and grievance mechanisms or are in the initial stages of developing such measures. As a positive initiative, Conservation International is currently designing a complaints mechanism, to be effective in 14 countries, in consultation with indigenous communities. In 2011, IUCN established the Whakatane Mechanism to undertake assessments with recommendations, in order to mediate in situations where indigenous peoples have been negatively affected by conservation measures. The first two pilot assessments took place in 2011 and 2012, in Mount Elgon, Kenya and in Ob Luang National Park, Thailand. Implementation of the mechanism has, however, stalled and requires additional resources and support from IUCN members to become operational.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 50
- Paragraph text
- Several conservation organizations, including IUCN, WWF and Conservation International reported that they engage regularly with indigenous international forums or that they support the participation of indigenous representatives at key debates on environment and conservation. Some conservation organizations have established advisory bodies consisting of indigenous peoples and have ensured that indigenous peoples are represented in senior positions within their organization, including on their boards. In a positive development, IUCN is currently revising its membership requirements, in order to enable more indigenous organizations to join and formally engage in discussions on conservation policy and practice.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 51
- Paragraph text
- The respective Special Rapporteurs on the rights of indigenous peoples have, since the establishment of the mandate in 2001, received numerous allegations of large-scale violations of the rights of indigenous peoples in the context of conservation measures. Among the consequences indigenous peoples have faced following forced displacement from protected areas are marginalization, poverty, loss of livelihoods, food insecurity, extrajudicial killings, and disrupted links with spiritual sites and denial of access to justice and remedy. The successive special rapporteurs have raised serious concerns over the impact that protected areas have had on indigenous peoples in a wide range of countries, including: Argentina, Botswana, Chile, Ecuador, Ethiopia, Honduras, Kenya, Mexico, Namibia, Nepal, the Russian Federation, South Africa and the United States of America.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Movement
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 52
- Paragraph text
- Many of these violations persist in countries where protected areas were declared prior to the introduction of rights-based conservation and where legal reforms in favour of indigenous peoples' rights remain deficient. The lack of collective land rights for indigenous people is a primary obstacle to ensuring that rights-based conservation becomes effective, as are conflicting legal norms and failure to implement legislation effectively. The declaration of World Heritage status on protected areas adds additional complexities. The management and co management of protected areas by indigenous peoples has to date only been applied to a limited extent but holds key potential in enhancing conservation in a manner which respects and enhances the rights of indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 53
- Paragraph text
- In Kenya, respective special rapporteurs have expressed long-standing concerns regarding the repeated evictions and forced displacement of several indigenous peoples, including the Ogiek and Sengwer from ancestral lands, which have been declared protected areas. The Ogiek have faced repeated evictions from their ancestral forest lands since the creation of the Mount Elgon national park in 1968 and further gazetting of their lands for the Chepkitale game park in 2000. The Sengwer continue to face displacement from the Embout forests, dating back to the 1970s. Forced away from their lands, indigenous peoples are denied their cultural and subsistence practices. Indigenous peoples who seek to return to their lands are regularly arrested and charged of poaching or even killed by armed "eco-guards". While indigenous peoples in Kenya have repeatedly emphasized their desire to engage in conservation, difficulties in settling collective land tenure remain a key obstacle.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 54
- Paragraph text
- A 2016 study by the Rainforest Foundation of 34 protected areas in five countries in the Congo Basin (Cameroon, Central African Republic, the Democratic Republic of the Congo, Gabon and the Republic of the Congo) found that indigenous communities have virtually no tenure security over their traditional lands in any of the five countries. The creation of at least 26 of the protected areas resulted in partial or complete relocation or displacement of local indigenous and farming communities present in the area prior to park establishment. In no case was any reparation for the displacements reported. Furthermore, of the 34 protected areas studied, 25 bordered with logging concessions, 19 overlapped with mining concessions and 9 overlapped with oil concessions.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Movement
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 55
- Paragraph text
- Protected areas constitute approximately 20 per cent of the total landmass in Nepal. The National Parks and Wildlife Conservation Act in that country provides no recognition of indigenous peoples' right to consultation or to access their traditional lands and resources. During a country visit in 2009, the Special Rapporteur received reports of mistreatment, arbitrary detention and sexual abuse of indigenous villagers, in particular indigenous women, by Chitwan National Park rangers and military officials (see HRC/12/34/Add.3, para. 37).
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Women
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 56
- Paragraph text
- The U'wa indigenous peoples in Colombia request that the National Park of El Cocuy, partly overlapping with the territory over which they hold legal title, be fully incorporated into it and placed under their custodianship. For the U'wa, the area has special spiritual and cultural significance, as the peak of the Cocuy mountain is home to the spirits and gods and cannot be tread upon without permission from U'wa spiritual authorities. The National Park was established in 1977, before the Constitution and national legislation was adopted on indigenous land rights, and the park remains under the jurisdiction of the government environment authorities. The U'wa reject the presence of settlers and tourism on the mountain and have expressed concern over the degradation of the park, claiming that the park authorities are not protecting the park properly. In discussions with government authorities, the U'wa have rejected co-management proposals and demanded to be designated the environmental authority for the protection of the park.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 57
- Paragraph text
- In India, Adivasis and tribal peoples have been evicted from tiger reserves for decades, often without any form of reparation. This continues to occur despite the Forest Rights Act of 2006, which only allows displacement from "critical wildlife habitats" if scientifically determined that the habitat is being damaged irreversibly and that co-existence is not possible. The Forest Rights Act stipulates that even then, displacement can only be carried out after obtaining free, prior and informed consent. In practice, however, displacement from protected areas continues across India through a combination of misinterpretation, coercion, and inducement. Reportedly, tribal peoples have faced prosecution for "offences" in protected areas, such as the traditional practice of collecting honey.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Persons on the move
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 58
- Paragraph text
- Many States are still encumbered with legal, regulatory, and institutional frameworks developed for a strict wilderness conservation model. Commonly, agencies for protected areas and cultural heritage were institutionally separated from other government bodies to protect them from corruption and commercial interests. Independent or semi-independent agencies were given sovereign responsibility for decisions within protected areas in contradiction to other constitutional and legal provisions protecting the rights of indigenous peoples, resulting in overlapping jurisdictions.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 59
- Paragraph text
- An analysis undertaken by the NGO Rights and Resources Initiative in 2015 of 21 countries where conflicts affect indigenous peoples in protected areas concluded that inadequate, inconsistent and poorly implemented legislation is a key obstacle to advancing rights-based conservation. The same report noted that legal reforms undertaken since the 2003 World Parks Congress provide a measure of the response of countries to the "new paradigm" articulated in the Durban Accord. Their review of new legislation adopted between 2003 and 2014 showed that these years have largely represented a missed opportunity. Only 8 of the 21 countries enacted or reformed their protected area legislation related to community land and resource rights during this time period. Where such reforms occurred, they mostly focused on enabling co-management or making provisions for communities who already owned land to include their lands in national protected-area systems.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 60
- Paragraph text
- Protected areas overlap with World Heritage sites in multiple instances. As raised by the previous Special Rapporteur (see A/67/301, paras. 33-42), the impact on indigenous peoples of the United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage sites is a recurring concern, notably because, on numerous occasions, these sites have been declared without consultation with indigenous peoples and have a serious negative impact upon their rights. Protected areas with heritage status have in several instances resulted in forced removal of indigenous peoples or significant restrictions on their access to livelihood resources and sacred sites. Furthermore, heritage listings often lead to an unprecedented increase in tourism. Yet, the Operational Guidelines for Implementation of the World Heritage Convention, which set out the procedure for the inscription of properties on the World Heritage list and the protection and conservation of sites, do not require participation by indigenous peoples. All three of the United Nations mechanisms dedicated specifically to promoting the rights of indigenous peoples, namely, the United Nations Permanent Forum on Indigenous Issues, the Expert Mechanism on the Rights of Indigenous Peoples and the Special Rapporteur, have called for reforms on how the Convention is applied, underlining the urgent need to reform the Operational Guidelines through which potential heritage sites are assessed, so that they are aligned with the Declaration on the Rights of Indigenous Peoples and adopt procedures to ensure indigenous peoples' free, prior and informed consent.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 61
- Paragraph text
- There are numerous examples of protected areas with heritage status over which concerns have been raised by indigenous peoples. In Kenya, the designation of Lake Bogoria National Reserve as a World Heritage site in 2011 was undertaken without the consent of the indigenous Endorois community, despite the ruling by the African Court on Human and Peoples' Rights in favour of the Endorois indigenous peoples' rights in 2009. The Endorois people have expressed concern that the Government of Kenya may use the World Heritage status as a pretext for denying them restitution, as required by the Court's decision.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 62
- Paragraph text
- In Argentina, the Special Rapporteur observed during a country visit in 2011 that after the Quebrada de Humahuaca was listed by UNESCO as a World Heritage site in 2003, there was a huge increase in tourism and in the economic value of the land occupied by indigenous peoples. The provincial government had issued land titles to foreign investors, and as a result, the surrounding indigenous communities were dispossessed of their land and had fewer water resources. The communities were not involved in the management of the site and derived no economic benefits therefrom. The Special Rapporteur recommended increased participation by indigenous peoples in the management of the site (see A/HRC/21/47/Add.2, paras. 50 and 97).
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 63
- Paragraph text
- In Thailand, the Government requested the listing of the Kaeng Krachen National Park in 2013 as a World Heritage park in 2013 without consulting the local indigenous Karen peoples. The Karen have experienced forced evictions, destruction of housing and crops, arrests and enforced disappearances. On 17 April 2014, a Karen human rights defender disappeared after attending a meeting on a lawsuit against park officials for destruction of Karen housing in 2010/2011. Park officials acknowledged having detained him earlier that day for illegal possession of wild honey, but claimed to have released him subsequently. His whereabouts have been unknown since. The Karen have expressed concerns over the potential listing of the park as a World Heritage site, fearing that it would result in further evictions, prohibitions on the gathering of wild honey and herbs and an increase of tourism, which would affect the environment negatively, creating problems, notably with waste management. The Office of the United Nations High Commissioner for Human Rights has advised the World Heritage Committee to ensure that comprehensive consultations are held by the Thai Government with Karen communities, to ensure respect for their rights, to refrain from evictions and to ensure that the communities can participate in the management of the park if it is designated a World Heritage park.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 64
- Paragraph text
- If the designation of World Heritage sites is done constructively and with the consent of the indigenous peoples affected, such status could provide an effective contribution to conservation and the protection of indigenous rights. In 2011, the World Heritage Committee incorporated the uranium-rich Koongarra area into the Kakadu National Park World Heritage site, at the joint request of the Government of Australia and the indigenous landowners, the Djok clan, which in effect barred future mineral development in the area.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 65
- Paragraph text
- Over the past decade, increasing evidence supports the correlation between secure indigenous tenure and positive conservation outcomes, at times better than those achieved in State-managed protected areas. The effectiveness of indigenous-owned lands in resisting deforestation in Brazil is well known. In Namibia, community-based wildlife management has resulted in significant growth in wildlife populations, especially in areas that had formerly been subject to heavy poaching. In Australia and the United States of America, indigenous peoples effectively manage or co-manage protected areas, through dynamic and sustainable partnerships which seek to redress past exclusion policies. In the Philippines, the national Indigenous Peoples' Rights Act includes a provision that protected areas within or overlapping ancestral domains will remain protected but that indigenous communities have primary responsibility for maintaining and protecting such areas. The law governing protected areas in the Philippines, the National Integrated Protected Areas Act, calls for indigenous peoples' participation in protected-area management boards. However, certain obstacles remain. For example, indigenous participation in management boards is impeded by a lack of training and orientation for indigenous peoples on their roles and responsibilities and such meetings tend to be conducted using overly technical language.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 66
- Paragraph text
- The management capacity of indigenous peoples is recognized as part of the new conservation paradigm. IUCN has committed to advocating for the recognition of "indigenous peoples and local community conserved territories and areas" in conservation policy as a new governance category. Yet, over the past decade only limited progress has been made towards their recognition and such governance still only exist in less than 5 per cent of all protected areas. Significant expansion of areas under indigenous management, coupled with solid partnerships with indigenous peoples for knowledge exchange, remain key opportunities for States and conservationists to operationalize the participation of indigenous peoples in conservation.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 67
- Paragraph text
- As the creation of protected areas and emerging conservation activities is further advanced by climate change initiatives, notably reducing emissions from deforestation and forest degradation in developing countries, and the role of conservation, sustainable management of forests, and enhancement of forest carbon stocks in developing countries, the active participation of indigenous peoples in these processes is essential to their sustainable success. The Special Rapporteur will continue to monitor these ongoing developments.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 68
- Paragraph text
- While the high rate of biodiversity in indigenous ancestral lands is well established, the contribution of indigenous peoples to conservation has yet to be fully acknowledged. Although a new rights-based paradigm to conservation has been advancing during the last decades, it remains in its initial stages of being applied. Rights-based conservation measures continue to be hampered by the legacy of past violations and by the lack of legal recognition by States of indigenous peoples' rights. Conservation organizations and indigenous organizations could be powerful allies in their mutually shared goals to safeguard biodiversity and protect nature from external threats such as unsustainable resource exploitation. Protected areas continue to expand, yet threats against them from extractive industry, energy and infrastructure projects are also increasing, and thus the urgency to address effective, collaborative and long-term conservation is of paramount importance. The escalating incidence of killings of indigenous environmentalists highlights the importance of conservationists and indigenous peoples joining forces. Insecure collective land tenure continues to undermine the ability of indigenous peoples to effectively protect their traditional lands, territories and natural resources. Conservation organizations should make much more use of their leverage vis-a-vis States to advocate for the legal recognition of indigenous peoples' rights at the national level.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 69
- Paragraph text
- Full recognition of indigenous land rights and participation are key enabling conditions for conservation to be sustained. The Durban Action Plan which states that all existing and future protected areas shall be managed and established in full compliance with the rights of indigenous peoples and the Sydney Vision which promised that there should be redress and remedy for past and continuing injustices in accord with international agreements are powerful commitments of the conservation community. The Special Rapporteur believes that the effective implementation of these commitments can operationalize the human rights-based conservation paradigm.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 70
- Paragraph text
- [To States:] Undertake all necessary measures for the effective implementation of the United Nations Declaration on the Rights of Indigenous Peoples and ratify the ILO Indigenous and Tribal Peoples Convention No. 169.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 71
- Paragraph text
- [To States:] Adopt all necessary policy, legal and administrative measures for the full recognition of the rights of indigenous peoples over their lands, territories and resources as enshrined in international human rights law.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 72
- Paragraph text
- [To States:] Review and harmonize the environmental, legal and institutional framework with their obligations regarding the rights of indigenous peoples and ensure that a rights-based approach is applied to the creation or expansion of existing protected areas.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 73
- Paragraph text
- [To States:] Comply with the duty to consult and obtain the free, prior and informed consent of indigenous peoples before the development of conservation initiatives which may affect their rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 74
- Paragraph text
- [To States:] Support partnerships between government authorities and indigenous peoples to encourage intercultural engagement in order to build trust and collaboration to favour of shared goals of sustainable conservation.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 75
- Paragraph text
- [To States:] Comply with judgments and decisions of international and regional human rights monitoring mechanisms regarding indigenous peoples' rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 76
- Paragraph text
- [To States:] Establish accountability and reparation mechanisms for infringements on indigenous rights in the context of conservation and provide redress for historical and contemporary wrongs.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 77
- Paragraph text
- [To conservation organizations:] Respect and support the rights of indigenous peoples as recognized in international human rights law and enhance their ability to engage in conservation by advocating for recognition of their collective rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 78
- Paragraph text
- [To conservation organizations:] Shift the new paradigm from paper to practice; adopt human rights-based policies, including on the rights of indigenous peoples, and ensure effective dissemination of these and trainings for conservation staff, especially for those involved in implementation at the national and local level.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 79
- Paragraph text
- [To conservation organizations:] As part of due diligence, improve monitoring and include compliance with indigenous peoples' rights in regular project assessments. Ensure that information obtained through monitoring and reporting is transparent and accessible.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 80
- Paragraph text
- [To conservation organizations:] Develop mechanisms for solid partnerships for regular and continuous engagement with indigenous peoples, including ensuring their full and effective participation in designing, implementing and monitoring conservation initiatives.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 81
- Paragraph text
- [To conservation organizations:] Support indigenous peoples to develop and sustain their own conservation initiatives and exchange conservation management experiences with them. This will allow learning from indigenous traditional conservation measures and transfer of technical skills to engage indigenous peoples in protected areas management.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 82
- Paragraph text
- [To conservation organizations:] Ensure that culturally appropriate complaints mechanisms are available for indigenous peoples to voice their concerns over conservation initiatives and support initiatives for indigenous peoples' right to remedy in cases when conservation activities have negatively impacted their rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 83
- Paragraph text
- [To donors:] Require that conservation organizations adopt human rights policies and monitor the application of human rights-based conservation programmes, notably in relation to indigenous peoples' rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 84
- Paragraph text
- [To donors:] Provide direct funding to better support indigenous peoples' own initiatives for conservation.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 85
- Paragraph text
- [To UNESCO:] Reform the Operational Guidelines through which the World Heritage Convention is implemented to align them with the United Nations Declaration on the Rights of Indigenous Peoples and adopt procedures to ensure indigenous peoples' free, prior and informed consent.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Conservation measures and their impact on indigenous peoples’ rights 2016, para. 86
- Paragraph text
- [To human rights monitoring mechanisms and relevant United Nations bodies and agencies:] Devote further attention to monitoring the impact conservation measures have on indigenous peoples, in order to promote a rights-based approach to protected areas management by government authorities and conservation organizations.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Corporate responsibility with respect to indigenous rights
- Body
- Special Rapporteur on the rights of indigenous peoples
- Legal status
- Non-negotiated soft law
- Document type
- Special Procedures' report
- Year
- 2010
- Document code
- A/HRC/15/37
Document
Corporate responsibility with respect to indigenous rights 2010, para. 26
- Paragraph text
- One of the questions that arises most frequently in the course of the different activities carried out by the Special Rapporteur under his mandate is the impact of corporate activities and in particular those of transnational corporations on the rights of indigenous people. After analysing various situations in different parts of the world, the Special Rapporteur considered that it was necessary to focus his thematic investigation during the past year on that question, with a view to clarifying the responsibility of business in this specific sphere, in accordance with international rules.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 27
- Paragraph text
- The role of companies with regard to human rights is a complex question which has provoked growing interest on the part of the international community. This interest has been reflected inter alia by the establishment by the Commission on Human Rights and the subsequent renewal by the Human Rights Council of the mandate of the Special Representative on the issue of human rights and transnational corporations and other business enterprises. The Special Representative has shown particular interest in the role of companies with regard to the human rights of indigenous peoples. The Special Rapporteur and the Special Representative's team have begun to work together on this issue, as was seen at the Sitges expert meeting on mechanisms to prevent and resolve conflicts arising from extractive activities (see paragraph 18 above).
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 28
- Paragraph text
- Despite the common elements characterizing this question, the role of companies with regard to indigenous rights includes a number of specific aspects, as demonstrated by the various initiatives launched by the former Working Group on Indigenous Peoples, the Permanent Forum on Indigenous Issues and the Office of the United Nations High Commissioner for Human Rights. The impact of the so-called "megaprojects" on indigenous peoples was also analysed in a thematic report prepared by the former Special Rapporteur. The various international initiatives carried out to date have analysed how lack of awareness of indigenous rights gives rise repeatedly to serious situations of dispossession, environmental contamination, forced displacement and permanent damage to the culture, spirituality and traditional knowledge of indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Movement
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 29
- Paragraph text
- With ever increasing frequency, as discussed at the expert meeting in Sitges, corporate activities in indigenous territories are causing serious social conflicts, which spark circles of violence and, in turn, new human rights violations. In such situations, as the Special Rapporteur has already demonstrated, indigenous peoples are not the only victims: social conflicts relating to corporate activities in indigenous territories have a negative impact on the economic interests and the image of the corporations themselves, and on the interests of the Governments concerned.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 30
- Paragraph text
- Such situations are frequently linked to an absence of adequate knowledge on the part of companies about their responsibility with regard to the rights of indigenous peoples and the contents of those rights. In many cases, companies tend to argue that their responsibility is limited to compliance with the legislation in force in the countries in which they are operating; however, this is clearly a limited argument and one that does not provide adequate solutions in cases where existing standards are inadequate or non-existent in relation to international standards or, simply, where the indigenous peoples affected are not officially recognized as such.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 31
- Paragraph text
- Faced with the constant refusal to recognize their rights in the context of corporate activities on their territories, many indigenous peoples have demonstrated their opposition to, or even their overt rejection of, such activities. However, as has been demonstrated in many international and national fora, the majority of indigenous peoples and communities are not opposed to corporate activity per se or to the potential benefits of such activity for their own economic and social development. Indeed, experience has shown that corporate activity may become a key factor in indigenous peoples' development when they themselves can control such activity in the exercise of their rights to autonomy and self-government. What indigenous people are opposed to, understandably, is development which is carried out without respect for their basic rights, which brings with it only adverse impacts and which does not result in any visible benefits for their communities.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 32
- Paragraph text
- The Special Rapporteur considers therefore that there is an urgent need to reach a minimum understanding of what corporate responsibility is with regard to the rights of indigenous peoples. Such a debate should be based on the same premises as the current international and multilateral debate on corporate responsibility and human rights in general.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 33
- Paragraph text
- While there is at present no clear international legal framework concerning corporate responsibility with respect to human rights, the international community as a whole has at least reached a certain normative consensus with regard to the existence of some type of responsibility. This consensus is reflected in the many regulatory and self-regulatory frameworks governing corporate responsibility that have appeared in recent decades, at both the international and domestic level, as well as the standard-setting debate currently under way.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 34
- Paragraph text
- Above and beyond their legal status, the various existing instruments and mechanisms clearly reflect the existence of social expectations with regard to corporate responsibility and the need to exercise it in relation to human rights. Current international debate on the subject tends to emphasize that corporate responsibility with respect to human rights is related to but fundamentally distinct from States' responsibilities. Indeed, the conceptual framework drawn up by the Special Representative of the Secretary-General distinguishes between three types of duties: the State duty to protect, the corporate responsibility to respect and the shared responsibility to remedy.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 35
- Paragraph text
- The State has the duty to protect against potential human rights abuses by business enterprises, including transnational corporations, as well as the duty to investigate and punish such abuses.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 36
- Paragraph text
- Companies, for their part, have a general duty to respect international human rights rules, within the framework of the due diligence which must govern their activities. As the Special Representative of the Secretary-General has observed, if companies are to exercise human rights due diligence, they must consider three sets of factors.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 37
- Paragraph text
- The first is the country context in which their business activities take place, to highlight any specific human rights challenges it may pose. The second is what human rights impact their own activities may have within that context, for example, in their capacity as producers, service providers, employers and neighbours. The third is whether they might contribute to abuse through relationships connected to their activities, such as with business partners, suppliers, State agencies and other non-State actors.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 38
- Paragraph text
- The duty of companies to respect human rights and the concept of due diligence in that regard are reflected in the United Nations Global Compact, the most important international initiative to date aimed at ensuring corporate social responsibility. Principles 1 and 2 of the Global Compact state that businesses "should support and respect the protection of internationally proclaimed human rights" and should ensure that "they are not complicit in human rights abuses".
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 39
- Paragraph text
- International instruments relating to indigenous rights primarily deal, as do human rights instruments in general, with State responsibility. That is the case of the United Nations Declaration on the Rights of Indigenous Peoples and Convention 169 of the International Labour Organization (ILO) on indigenous and tribal peoples in independent countries. Along with States' obligations, these instruments also set out rights that both companies and other private stakeholders must respect.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 40
- Paragraph text
- In its General Recommendation XXIII on the rights of indigenous peoples, the Committee on the Elimination of Racial Discrimination placed special emphasis on the problem of the loss of indigenous lands and resources to, inter alia, "commercial companies" and the threat that such loss posed to the "preservation of their culture and their historical identity". That concern has been duly reflected in the practice of the Committee and of other treaty bodies such as the Human Rights Committee and the Committee on Economic, Social and Cultural Rights which, as reported by the Special Representative, have emphasized the need for States to take measures to regulate and investigate the activities of extractive industries and, as appropriate, to sanction them for any abuses of indigenous rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 41
- Paragraph text
- Regulatory or self-regulatory frameworks governing corporate responsibility with regard to indigenous peoples have been more fully developed than in other specific human rights fields. Various international financial institutions, including the World Bank and its International Finance Corporation (IFC), have developed special performance requirements or policies to encourage public or private companies to ensure a minimum level of respect for international indigenous rights standards in their activities, in such key areas as consulting or territorial rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 42
- Paragraph text
- Various corporate social responsibility (CSR) initiatives by civil society or by the corporate sector, referring either to individual or sectoral responsibility, include specific standards concerning respect for and promotion of indigenous rights. For example, under its Principles and Criteria for Forest Management, used for forest certification, the Forest Stewardship Council (FSC) has included respect for the customary rights of indigenous peoples to own, use and manage their lands and territories. The multisectoral Global Reporting Initiative (GRI) also includes indigenous rights in its guidelines for the voluntary submission of sustainability reports and specifically in relation to the mining and metals sector. The International Council on Mining and Metals (ICMM), an international organization which brings together leading companies in the sector, has adopted a position statement on mining and indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 43
- Paragraph text
- According to the information gathered by the Special Representative of the Secretary-General on human rights and transnational corporations, the corporate social responsibility policies of individual private companies, especially the extractive industries, include broader commitments to indigenous communities than to other social sectors. Such commitments range from respect for local cultures and communities, to improving the economic conditions of those communities and, at times, to requiring free, prior and informed consent.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 44
- Paragraph text
- Of particular interest is the fact that a series of important official initiatives have been taken nationally to encourage corporate responsibility with regard to indigenous peoples, either within the countries themselves or in other countries. The Australian Human Rights Commission, for example, has actively promoted negotiations between business and indigenous peoples in the framework of corporate social responsibility. The Human Rights Compliance Assessment (HRCA), developed by the Danish Institute for Human Rights, includes a set of indigenous rights criteria, based on ILO Convention No. 169. Some policies for bilateral cooperation with indigenous peoples, such as those of the Danish International Development Assistance Agency (DANIDA), or the Spanish Agency for International Development Cooperation (AECID), also include a commitment to promote corporate responsibility, including of multinational corporations, in this area.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 45
- Paragraph text
- The growing interest shown by various stakeholders in the establishment of regulatory or self-regulatory frameworks in relation to indigenous rights demonstrates awareness of the adverse effects of specific types of business practices on indigenous peoples, and the expectation, increasingly widely shared, that companies bear responsibilities for respecting indigenous rights, as guaranteed by existing international standards. The international community expects companies, as part of the due diligence they must exercise in relation to human rights, to be proactive by identifying the rights of indigenous peoples in the areas in which they operate and by determining how those peoples would be affected by their activities. There is at the same time a clear expectation that companies, in carrying out their activities, will respect indigenous rights, fostering rather than blocking States' compliance with the obligation to protect those rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 46
- Paragraph text
- In the context of indigenous peoples, the corporate responsibility to respect human rights means that companies must exercise due diligence by identifying, prior to commencing their activities, various matters relating to the basic rights of indigenous peoples, and by paying adequate attention to those matters as the activities are being carried out. Such matters include recognition of the existence of indigenous peoples and of their own social and political structures; indigenous possession and use of land, territory and natural resources; exercise by the State of its duty to consult indigenous peoples in relation to activities that might affect them, and the related responsibility of business; impact studies and mitigation measures; and benefit sharing with indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 47
- Paragraph text
- As observed by the Special Representative of the Secretary-General, due diligence is not limited to respect for the domestic regulations of States in which companies operate, which are inadequate in many cases, but should be governed by the international standards that are binding on those States and on the international community as a whole. Consequently, companies wishing to exercise due diligence with respect to indigenous rights should be guided in their activities by the rights recognized under the relevant international rules, including the United Nations Declaration and ILO Convention No. 169, even if they operate in countries that have not formally accepted or ratified these rules.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 48
- Paragraph text
- Due diligence also means that companies must not contribute to States' failure to meet their international obligations in relation to indigenous rights, nor should they endeavour to replace States in the fulfilment of those obligations. This point is particularly relevant in relation to the State's duty to consult indigenous peoples, a procedural obligation associated with the duty to protect indigenous peoples' substantive rights (see paragraphs 60 to 70 below).
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 49
- Paragraph text
- One of the fundamental difficulties facing companies that operate in indigenous territories, or whose operations affect those territories, is the absence of formal recognition of indigenous peoples by the State in which they live, or recognition limited solely to certain groups. Nevertheless, a generally accepted principle of international human rights law holds that the existence of distinct ethnic, linguistic or religious groups, including indigenous peoples, can be established by objective criteria and cannot depend on a unilateral decision by a State.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 50
- Paragraph text
- Businesses cannot use limited recognition, or absence of explicit recognition, of indigenous peoples in the countries in which they operate as an excuse not to apply the minimum international standards applicable to indigenous rights, including in cases where States are opposed to the application of such standards. Due diligence therefore requires that companies identify in advance the existence of indigenous peoples potentially affected by their activities and how they might be affected by such activities.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 51
- Paragraph text
- This responsibility has been expressly included in World Bank and International Finance Corporation (IFC) policies concerning indigenous peoples. World Bank policy emphasizes that the term indigenous peoples is used in a generic sense to refer to "a distinct, vulnerable, social and cultural group" with its own special characteristics, and takes note of the fact that such peoples may be referred to by different terms depending on the specific context. In relation to that question, both policies require borrowers to conduct technical studies prior to their operations, as necessary.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 52
- Paragraph text
- In the absence of a universally accepted definition, companies may have recourse to the definition provided in ILO Convention No. 169, which has been also been used by States that have not ratified the Convention in their legislation or policies concerning indigenous people, and by numerous international organizations and some companies. Other instruments available to businesses for the identification of indigenous peoples potentially affected by their activities, including in the absence of official recognition, are the criteria defined by World Bank and International Finance Corporation (IFC) policies.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 53
- Paragraph text
- A second feature of the due diligence incumbent on companies whose activities have a potential impact on indigenous peoples is identification of indigenous forms of ownership and use of land, territories and natural resources, a question of vital importance to the effective enjoyment of human rights by indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 54
- Paragraph text
- According to international standards and practice, indigenous people have a sui generis right to communal ownership of the land, territories and natural resources which they have traditionally used or occupied, that is, in accordance with their culturally distinct patterns of use and occupation (Declaration, arts. 24-29; ILO Convention No. 169, arts. 13-17). Such patterns include a broad spectrum of activities not necessarily limited to economic subsistence activities but which also include cultural and spiritual uses of the territory, and the resources necessary for their economic and social development as peoples. According to the international normative consensus, the right of indigenous peoples to lands, territories and natural resources originates in their own customary law, values, habits and customs and, therefore, is prior to and independent of State recognition in the form of an official property title.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 55
- Paragraph text
- The absence of official recognition of indigenous communal ownership, either because such ownership has failed to be established through demarcation or title granting processes or any other legal mechanism, or owing to the lack of adequate legislation, cannot be used as grounds or as an excuse by companies that claim to be exercising due diligence in relation to indigenous rights. Due diligence therefore requires that companies conduct an independent assessment of the rights to which indigenous people may lay claim in accordance with the criteria laid down in international rules, especially if such criteria are not fully applicable under domestic law.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 56
- Paragraph text
- The same line of reasoning informs World Bank and IFC policies concerning indigenous peoples, according to which a set of special criteria apply when borrowers' projects have any kind of impact on the territories or natural resources traditionally used by indigenous peoples. For example, projects which depend on the recognition of indigenous communal ownership or which involve land acquisition, require prior documentation, prepared by experts, of indigenous patterns of land use and occupation. Under these policies, indigenous customary land tenure must be treated on a equal footing with legally titled ownership.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Economic Rights
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 57
- Paragraph text
- Given that customary land tenure is one of the specific features characterizing the large majority of indigenous peoples worldwide, and a basic factor in the international recognition of their rights, the mere existence of such groups in the areas where companies plan to carry out their activities must be considered by those companies as a strong indication that those groups have some sort of rights over the land and resources that they occupy or otherwise use. Furthermore, companies cannot, in the exercise of due diligence, assume that the absence of official recognition of indigenous communal ownership rights implies that such rights do not exist.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Economic Rights
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 58
- Paragraph text
- It is also particularly important to include in corporate activities special guarantees of compensation for the removal of indigenous communities and peoples from their lands, including in projects that involve the acquisition of indigenous lands held under individual titles. In such cases, international standards require that alternatives that limit or avoid such relocation should be sought and that compensation should be provided as a priority in the form of other land (Declaration on the Rights of Indigenous Peoples, art. 10; ILO Convention No. 169, art. 16). Moreover, under the Declaration, States must obtain the consent of indigenous peoples before they can authorize their collective relocation (art. 10).
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 59
- Paragraph text
- Due diligence exercised by business in relation to indigenous lands, territories and resources requires that companies bring to bear an intercultural understanding that goes far beyond mere legal considerations. International standards have highlighted the special relationship existing between indigenous peoples and their traditional territories, which form the basis of their distinct identity and culture. Companies must understand that, independent of the rights over their lands or resources to which they may lay claim under international and national rules, indigenous peoples have maintained, and continue to maintain, ties to their traditional territories by participating in their control and management. These ties are, moreover, collective, and therefore go far beyond the individual rights of the members of these groups.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 60
- Paragraph text
- In his previous report to the Human Rights Council, the Special Rapporteur stressed that the failure of States to comply with the duty to consult with indigenous peoples before carrying out activities that affected them, and in particular in relation to corporate projects likely to have an impact on indigenous peoples, had regularly given rise to "conflictive situations, with indigenous expressions of anger and mistrust, which, in some cases, have spiralled into violence".
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 61
- Paragraph text
- According to well-established principles of international law, the duty to consult indigenous peoples, like other human rights obligations, is a responsibility that falls mainly to States. However, in practice, States often delegate companies, formally or informally, to carry out such consultations. Delegation, besides not absolving the State of its ultimate responsibility to consult, "may not be desirable, and can even be problematic, given that the interests of the private company, generally speaking, are principally lucrative and thus cannot be in complete alignment with the public interest or the best interests of the indigenous peoples concerned". Moreover, in most cases, companies, even while acting in good faith, do not always have an adequate understanding of the relevant international standards and do not have internal codes of conduct reflecting them.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 62
- Paragraph text
- What is the relationship between the State's duty to consult and consultations carried out by private companies? First, in accordance with international rules, States must consult indigenous peoples prior to the authorization of any measure that may have a direct impact on their rights, particularly in relation to activities carried out in indigenous traditional territories (Declaration, arts. 19, 32 (2); ILO Convention No. 169, arts. 6 and 15). Consultations must be conducted in accordance with the criteria laid down in international standards, which were analysed by the Special Rapporteur in his previous report and which, in some cases, require the consent of the indigenous peoples concerned.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 63
- Paragraph text
- Where private companies are to be granted the legal right to carry out activities (either through an actual concession, a production sharing contract or a service delivery agreement), the State must carry out consultations in the initial phases of the project, ideally during the inventory phase and certainly before the invitation to tender and the awarding of the concession. The need for prior consultations is even more evident in the case of public corporation activities.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 64
- Paragraph text
- Consultation is a process of dialogue or negotiation and, depending on the specific circumstances of the case, should not be viewed as a single event. In many cases, especially corporate projects such as dam and infrastructure construction, or exploitation of mining resources or hydrocarbons, various administrative decisions may need to be taken, for example approval of environmental licences. Where such decisions involve State institutions and entail modifications to the initial plan on which the indigenous peoples concerned have already been consulted, the State must so inform them and conduct further consultations.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 65
- Paragraph text
- Among the due diligence measures that they must exercise to respect indigenous rights, companies must ensure that they, through their own acts, do not contribute to any act or omission on the part of the State that could lead to violations of those rights. Thus, companies must not accept any award or commence any activity if the State has failed to hold prior and adequate consultations with the indigenous communities concerned, and companies, in exercising due diligence, may not simply assume that such consultations have taken place prior to the award being granted. Likewise, companies must not hold consultations that endeavour to or actually replace the State's obligation to consult with indigenous peoples in relation to activities affecting them.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 66
- Paragraph text
- Businesses, in the exercise of due diligence with respect to basic human rights principles, should therefore abstain from operating in countries in which consultation with indigenous peoples has not been duly established in general terms or in relation to the specific activity for which the award is made, in conformity with international rules.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 67
- Paragraph text
- Independent of States' basic responsibility to consult with indigenous peoples prior to the implementation of measures affecting them, and the assumption that States alone should perform that task, companies also bear a responsibility to respect indigenous peoples' right to participate in decisions with regard to such measures, including through the holding of consultations to keep them informed. Such consultations are particularly important in connection with impact studies, compensation measures and benefit sharing (see paragraphs 71 to 80 below). Because they involve one of the State's primary responsibilities, consultations carried out by companies should be supervised by the State.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 68
- Paragraph text
- Ongoing consultation and dialogue with the communities concerned can also foster transparency through the dissemination of information, and establish the confidence necessary to gain support for the project and avoid potential conflicts. Likewise, consultations with indigenous peoples can serve as an early warning system with regard to possible negative impacts or problems arising from the project, so that measures can be taken to avoid similar problems in the future.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 69
- Paragraph text
- One excellent way to ensure that companies respect indigenous peoples' right to participate in decisions concerning the measures affecting them is to establish permanent institutional fora for consultation and dialogue, in which the peoples and communities concerned, companies and local authorities are appropriately represented, as recommended by the Special Rapporteur in cases of conflict arising from corporate projects in indigenous territories. Such fora may also be associated with informal complaint mechanisms which provide a way to satisfy the demands of the communities concerned.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 70
- Paragraph text
- The responsibility to consult indigenous peoples must be fully assumed by companies as part of their duty to respect human rights. This implies a change in perspective that goes beyond traditional approaches to local participation which are aimed at obtaining support for project operations. Companies must therefore make every possible effort to carry out responsible, transparent and effective consultations, which genuinely correspond to the goal of reaching agreement or consensus with indigenous peoples, in accordance with the relevant international instruments. In conducting such consultations, companies should endeavour to incorporate in them the minimum criteria laid down in those international instruments, especially in cases where domestic law provides either limited regulations or none at all.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 71
- Paragraph text
- Impact studies and the definition of appropriate measures to compensate for any negative impact identified are, by definition, related to the consultation process. In recognition of the special ties that indigenous peoples maintain with the natural habitats of the territories in which they live, international standards widely acknowledge indigenous peoples' "right to the conservation and protection of the environment" and of the "productive capacity of their lands or territories and resources" (Declaration, art. 29.1), and at the same time call for the adoption of "special measures ... for safeguarding" their environment (ILO Convention No. 169, art. 4.1). Such rights are in addition to the social and cultural rights that may be affected by corporate activities.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 72
- Paragraph text
- In recognition of indigenous peoples' reinforced right to the conservation and protection of the environment, international standards and practice now require that social and environmental impact studies be conducted as a specific guarantee for the protection of indigenous rights, and in particular with regard to projects involving investment in or the development, exploration or extraction of natural resources likely to affect those rights. Under article 7.3 of ILO Convention No. 169, States are required to conduct "studies ... in co-operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities", the outcome of which must serve as "fundamental criteria" for the implementation of those activities. In its judgement Pueblo Saramaka v. Suriname, the Inter-American Court of Human Rights stated that conducting social and environmental impact studies guaranteed the right of indigenous communal ownership in relation to the projects carried out on their territories and that such studies must be conducted by independent technical experts under the supervision of the State. Such studies are also expressly required by the policy of various international financial institutions.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 73
- Paragraph text
- As the Special Representative of the Director-General has noted with respect to multinational corporations, the traditional impact study paradigm must be modified to incorporate fully a human rights based approach. Under that new approach, in drawing up the terms of reference for impact studies relating to indigenous rights, companies must identify "the relevant human rights standards, including those set out in international conventions to which the home and host countries are signatories (perhaps also noting human rights conventions those countries have not ratified)" and other standards such as "indigenous customary laws and traditions (for example those that govern the distribution and ownership of land)". That was the approach used, for example, in the Akwé Kon Guidelines, adopted by the Conference of Parties of the Convention on Biological Diversity and intended to facilitate the conduct of cultural, environmental and social impact assessments regarding activities planned to take place on indigenous territories or which might affect those territories.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 74
- Paragraph text
- The ultimate goal of impact studies is to ensure that all necessary steps are taken to avoid any negative impact that the planned activities might have on the environment and on the social, economic, cultural and spiritual life of indigenous peoples. As part of their duty to respect indigenous rights, companies must therefore do everything possible to seek technically feasible solutions to mitigate or limit such impact (Declaration, art. 32.3). When, for fundamental reasons, adverse impact cannot be avoided, indigenous peoples are entitled to "just and fair redress" for any damage arising from corporate activities, as clearly set out in the relevant international instruments (Declaration, arts. 20.2, 32.3; ILO Convention No. 169, art. 15.2).
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 75
- Paragraph text
- As may be clearly deduced from international standards, compensation must be aimed at repairing all possible adverse impacts of corporate activity on the daily life of indigenous peoples, including not only the impact on their environment or productive capacity, but also the impact on the social, cultural and spiritual aspects of their life. The practice of the Inter-American Court of Human Rights offers in that regard a series of highly pertinent examples of compensation and reparation in cases of damage to indigenous peoples' social and cultural practices.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 76
- Paragraph text
- Aside from their entitlement to compensation for damages, indigenous peoples have the right to share in the benefits arising from activities taking place on their traditional territories, especially in relation to natural resource exploitation. The duty to establish benefit sharing mechanisms for peoples affected by such activities is set out explicitly in article 15.2 of ILO Convention No. 169 and has been reiterated by, inter alia, the jurisprudence of the Inter-American Court of Human Rights and the Committee on the Elimination of Racial Discrimination (CERD).
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 77
- Paragraph text
- Indigenous peoples' right to share in the benefits arising from activities affecting their traditional territories reflects the broad international recognition of the right to indigenous communal ownership, which includes recognition of rights relating to the use, administration and conservation of the natural resources existing in indigenous territories, independent of private or State ownership of those resources In that regard, the previous Special Rapporteur has observed that "mutually acceptable benefit sharing" is a means of guaranteeing the human rights of indigenous peoples "in relation to major development projects". Likewise, the Inter-American Court of Human Rights has ruled that benefit sharing is one of the guarantees required in any case involving limitations on the rights of indigenous communal ownership; benefit sharing must be understood as equivalent to the right to fair compensation for limitation or deprivation of property, as recognized in various international instruments.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 78
- Paragraph text
- There is no specific international rule that guarantees benefit sharing for indigenous peoples, aside from the consideration that such sharing must be "fair and equitable". Domestic law still presents serious limitations in this sphere. States rarely guarantee a share in the benefits arising from natural resource exploitation, and when such benefit sharing is established by law, a distinction is usually not made between the local population and indigenous communities per se. Moreover, the share in project-generated benefits is often trivial in comparison with the company's share, and there are often no clear and transparent criteria for apportioning such benefits.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 79
- Paragraph text
- When domestic law offers limited responses to this question, or no responses at all, due diligence with respect to indigenous rights may require companies to set up specific benefit-sharing mechanisms, based on international standards. It should be kept in mind that under a corporate approach based on respect for indigenous rights, benefit sharing must be regarded as a means of complying with a right, and not as a charitable award or favour granted by the company in order to secure social support for the project or minimize potential conflicts.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 80
- Paragraph text
- From the standpoint of indigenous rights, benefit sharing must go beyond restrictive approaches based solely on financial payments which, depending on the specific circumstances, may not be adequate for the communities receiving them. As pointed out by the participants in the international seminar held by the Permanent Forum in Manila in 2009, "payments to indigenous communities often had negative impacts on the community and were divisive" and could easily lead to the exercise of "undue influence and even bribery". Consideration should be given to the development of benefit-sharing mechanisms which genuinely strengthen the capacity of indigenous peoples to establish and follow up their development priorities and which help to make their own decision-making mechanisms and institutions more effective.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 81
- Paragraph text
- The absence of clarity with respect to corporate responsibility, especially transnational corporate responsibility, in relation to indigenous rights is the source of numerous abuses worldwide. The implementation of corporate activities without taking account of those rights, as they are recognized under international rules, has given rise to highly negative impacts on the environment and the economic, social, cultural and spiritual life of indigenous peoples. Such irresponsible corporate activity, sometimes abetted or simply ignored by the Governments concerned, continues to engender serious social conflicts in areas where indigenous peoples live.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 82
- Paragraph text
- These conflicts, which are worsening as new regions of the world get involved in natural resource exploitation or infrastructure building, have given rise to situations of genuine ungovernability, which limit the capacity of States and the companies themselves to carry out projects that fail to take into account indigenous rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 83
- Paragraph text
- As a result, the international community now holds the expectation, increasingly shared by all the stakeholders directly involved, including business itself, that companies bear certain responsibilities with respect to indigenous rights. Within the conceptual framework drawn up by the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises - protect, respect and remedy - companies have, at the very least, the duty to comply with international standards relating to the human rights of indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 84
- Paragraph text
- As part of their responsibility to respect indigenous rights, companies must exercise due diligence by identifying legal, institutional or other factors that have an impact on the effective enjoyment of the rights of indigenous peoples in the countries in which such companies operate; evaluating effectively the possible negative impact their activities may have on indigenous rights; and ensuring that such activities do not contribute to acts or omissions by States and other stakeholders that might give rise to abuses of those rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 85
- Paragraph text
- Due diligence exercised by companies in relation to indigenous rights include, first, the identification of the indigenous peoples that might be affected by their activities, including in States that do not recognize, or recognize solely in a limited fashion, the indigenous peoples living within their borders. For the purposes of such identification, companies must apply the international criteria which define the category of indigenous peoples and provide the grounds for a series of specific rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 86
- Paragraph text
- In addition, within the framework of due diligence, companies must take account of the criteria, as laid down in international rules, for recognition of the rights of indigenous peoples, in particular their right to lands, territories and natural resources, including in cases where domestic law differs substantially from such criteria. Companies must therefore grant, in all respects, full recognition of the indigenous territorial rights arising from customary land tenure, independent of official State recognition.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 87
- Paragraph text
- The principle of due diligence also requires that companies recognize the duty of States to consult indigenous peoples (and, in some case, to obtain their consent) prior to the adoption of measures that may affect them directly, and in particular in relation to projects that affect their traditional territories. Companies must not attempt to replace Governments in situations where international standards require Governments to bear direct responsibility for holding consultations; indeed, they must promote the full assumption by Governments of such responsibility.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 88
- Paragraph text
- Lastly, companies would be negligent in their due diligence with respect to human rights if they agreed to work on specific projects or with countries in which Governments fail to guarantee adequate consultation with indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 89
- Paragraph text
- Without prejudice to the principle that States bear the main responsibility to consult, companies must respect the strengthened right of indigenous peoples to participate in decisions affecting them by ensuring adequate mechanisms for consultation and dialogue with them. Here, the purpose of consultations with indigenous peoples should be to seek consensus on key aspects such as identification of the potential negative impact of the activities, measures to mitigate and compensate for such impact, and mechanisms for sharing the benefits derived from the activities. Once again, if companies wish to exercise due diligence, they must ensure that the consultations they hold are based on the criteria laid down in international rules, especially when the States in which they operate provide inadequate legal regulations, or none at all.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 90
- Paragraph text
- An adequate consulting process requires full information on the planned corporate activity, which means, first of all, that impact studies must be conducted prior to the implementation of the project. From a human rights standpoint, such studies, conducted by independent technical experts under State supervision, must consider all possible negative impacts on the rights, of whatever kind, of the indigenous communities concerned. Impact studies must also identify possible ways of mitigating those impacts. In the event that such solutions do not exist or are not technically feasible, companies must compensate for all types of damage sustained by the indigenous peoples concerned.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Equality & Inclusion
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Corporate responsibility with respect to indigenous rights 2010, para. 91
- Paragraph text
- Independent of compensation measures, companies are bound by their duty to respect indigenous rights to establish mechanisms ensuring that indigenous peoples share the benefits generated by the activities in question. Benefit sharing responds in part to the concept of fair compensation for deprivation or limitation of the rights of the communities concerned, in particular their right of communal ownership of lands, territories and natural resources. Companies must ensure that benefit-sharing mechanisms genuinely fulfil that purpose, and that they are appropriate to the specific context of indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2010
Paragraph
Extractive industries and indigenous peoples
- Body
- Special Rapporteur on the rights of indigenous peoples
- Legal status
- Non-negotiated soft law
- Document type
- Special Procedures' report
- Year
- 2013
- Document code
- A/HRC/24/41
Document
Extractive industries and indigenous peoples 2013, para. 8
- Paragraph text
- In contrast to the prevailing model in which natural resource extraction within indigenous territories is under the control of and primarily for the benefit of others, indigenous peoples in some cases are establishing and implementing their own enterprises to extract and develop natural resources. This alternative of indigenous-controlled resource extraction, by its very nature, is more conducive to the exercise of indigenous peoples' rights to self-determination, lands and resources, culturally appropriate development and related rights, in accordance with the United Nations Declaration on the Rights of Indigenous Peoples and other international sources of authority.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 9
- Paragraph text
- As part of their right to self-determination, "indigenous peoples have the right to determine priorities and strategies for the development or use of their lands and territories". This right necessarily implies a right of indigenous peoples to pursue their own initiatives for resource extraction within their territories if they so choose. In cases in which indigenous peoples retain ownership of all the resources, including mineral and other subsurface resources, within their lands, ownership of the resources naturally includes the right to extract and develop them. But even where the State claims ownership of subsurface or other resources under domestic law, indigenous peoples have the right to pursue their own initiatives for extraction and development of natural resources within their territories, at least under the terms generally permitted by the State for others.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 10
- Paragraph text
- The Special Rapporteur notes that the model by which indigenous peoples themselves initiate and control resource extraction in their own territories in accordance with their own development priorities has been gaining ground in a number of countries where indigenous peoples have developed the relevant business and technical capacity. There are several notable cases in North America, for example, in which indigenous nations or tribes own and operate companies that engage in oil and gas production, manage electric power assets, or invest in alternative energy. In many such cases they have partnered with non-indigenous companies to develop extractive enterprises in which they have or eventually gain majority ownership interests.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 11
- Paragraph text
- To be sure, even resource extraction by indigenous peoples' own enterprises may pose certain risks to the enjoyment of human rights of the members of indigenous communities, particularly in relation to the natural environment. Experience shows, however, that those risks may be minimized, and the enjoyment of self-determination and related rights enhanced, when indigenous peoples freely choose to develop their own resource extraction enterprises backed by adequate capacity and internal governance institutions.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 12
- Paragraph text
- In compliance with their obligation to promote and fulfil the rights of indigenous peoples, States should have programmes to assist indigenous peoples to develop the capacity and means to pursue, if they so choose, their own initiatives for natural resource management and development, including extraction. States have the obligation not only to respect human rights by refraining from conduct that would violate such rights, but also to affirmatively protect, promote and fulfil human rights. This principle of international human rights law applies no less to the specific rights of indigenous peoples that are derived from broadly applicable human rights standards.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 13
- Paragraph text
- The mounting of enterprises for the extraction, development and marketing of natural resources depends on a range of business and technical skills. Additionally, projects for resource extraction are normally associated with substantial start-up investments, and they commonly generate profits only after several years. It is evident that the vast majority of indigenous peoples across the globe do not now have the capacity or financial means to develop their own resource extraction enterprises, or to build strategic partnerships with non-indigenous companies that would help develop their control over extractive enterprises. A long-term view should be taken to assist indigenous peoples who might want to go down this path as one of the alternatives that may be available to them, in contrast to the alternative of seeing the natural resources within their territories being extracted under the control of others. Indigenous peoples should not be viewed as being frozen at a certain stage of development or capacity, but rather should be supported in ways that enable them to develop and build capacity in accordance with their own designs and aspirations.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 14
- Paragraph text
- The Special Rapporteur is aware that in several countries State-sponsored programmes exist to assist indigenous peoples to manage natural resources or develop their own income generating enterprises, as part of broader programmes for development assistance. These programmes provide various kinds of support, such as grants, loans, favourable tax treatment, advisory services, skills training and scholarships. Where these programmes exist they should be strengthened and specifically targeted to support capacity-building and to provide financial assistance for indigenous peoples' own initiatives for natural resource management and extraction. In those countries where they do not exist, such support programmes should be introduced and likewise developed by the State. International, regional and national donor and development agencies should also support indigenous peoples' own resource extraction and development initiatives.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 15
- Paragraph text
- State support for indigenous peoples, furthermore, should include providing assistance for acquiring any necessary licenses or permits. Also, in granting any licenses or permits, States should give preference to indigenous peoples' initiatives for resource extraction within their territories over any initiatives by third party business interests to pursue resource extraction within those same lands.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 16
- Paragraph text
- The justification for this preference is in the fact and nature of the indigenous presence. Characteristically, indigenous peoples have strong cultural attachments to the territories they inhabit, and their presence in those territories predates that of others. They have been stewards of the lands and resources within their territories for generations past, and have sought to safeguard the lands and resources for future generations. Very often indigenous peoples lay claim to all the resources, including subsurface resources, within their territories, under their own customs or laws, notwithstanding the laws of the State, and very often, those claims have not been adequately resolved. Given these factors, recognizing a priority for indigenous peoples for the extraction of resources within their territories is a matter of equity if not of entitlement.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 17
- Paragraph text
- Giving preference to indigenous peoples' initiatives for resource extraction within their territories is, moreover, a matter of good practice. Resource extraction carried out by indigenous peoples themselves maximizes the possibility of such extraction being pursued in manners respectful of the rights and interests of indigenous peoples. When indigenous peoples themselves control resource extraction, many of the challenges and elements of instability inherent in extractive activities by State or third party enterprises are necessarily diminished or altogether avoided. In addition, profits that the resource extraction project generates are more likely to stay within the State, and capacity enhancement benefits local people.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 18
- Paragraph text
- Just as indigenous peoples have the right to pursue their own initiatives for resource extraction, as part of their right to self-determination and to set their own strategies for development, they have the right to decline to pursue such initiatives, as many do and no doubt will continue to do. Today, however, much more often than being faced with the choice of whether or not to pursue their own resource extraction initiatives, indigenous peoples face resource extraction projects that are advanced by the State and third party business enterprises, typically when the State claims ownership of the resources. Although in an increasing number of cases indigenous peoples are accepting such initiatives, it appears that in many more places around the world they are resisting them.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 19
- Paragraph text
- The rights to freedom of expression and to participation are firmly established in international human rights law. By virtue of these rights, indigenous individuals and peoples have the right to oppose and actively express opposition to extractive projects, both in the context of State decision-making about the projects and otherwise, including by organizing and engaging in peaceful acts of protest. States are bound to respect and protect rights of freedom of expression and participation, and may impose limitations on the exercise of those rights only within narrow bounds and for reasons of public order.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 20
- Paragraph text
- Many cases have come to the attention of the Special Rapporteur in which indigenous individuals or communities have suffered repression for their opposition to extractive projects. In several of the cases, indigenous individuals and groups opposing extractive projects have been met with acts of intimidation or violence, including violence resulting in death.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Extractive industries and indigenous peoples 2013, para. 21
- Paragraph text
- It is imperative that States adopt the measures necessary to secure the right of indigenous peoples and individuals to peacefully express opposition to extractive projects, as well as to express themselves on other matters, free from any acts of intimidation or violence, or from any form of reprisals. States should provide adequate training to security forces, hold responsible those who commit or threaten acts of violence, and take measures to prevent both State and private agents from engaging in the unjustifiable or excessive use of force. Additionally, criminal prosecution of indigenous individuals for acts of protest should not be employed as a method of suppressing indigenous expression and should proceed only in cases of clear evidence of genuine criminal acts. Instead, the focus should be on providing indigenous peoples with the means of having their concerns heard and addressed by relevant State authorities.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph