30/53 Promotion and protection of the rights of indigenous peoples with respect to their cultural heritage - Study by the Expert Mechanism on the Rights of Indigenous Peoples

Human Rights Council Thirtieth session

Agenda item 5

Human rights bodies and mechanisms

Promotion and protection of the rights of indigenous peoples with respect to their cultural heritage

Study by the Expert Mechanism on the Rights of Indigenous Peoples

Summary

In its resolution 27/13, the Human Rights Council requested the Expert Mechanism

on the Rights of Indigenous Peoples to prepare a study on the promotion and protection of

the rights of indigenous peoples with respect to their cultural heritage, including through

their participation in political and public life, and to present it to the Council at its thirtieth

session.

The present study offers a comprehensive analytical overview of the international

legal framework and jurisprudence regarding the rights of indigenous peoples with respect

to their cultural heritage, and addresses some of the specific issues for indigenous peoples

when it comes to cultural heritage.

The study concludes with Expert Mechanism advice No. 8 on the cultural heritage

of indigenous peoples.

United Nations A/HRC/30/53

General Assembly Distr.: General 19 August 2015

Original: English

Contents Page

I. Introduction ...................................................................................................................................... 3

A. Concept of cultural heritage ..................................................................................................... 3

B. Indigenous peoples and cultural heritage ................................................................................. 4

II. Review of the international legal framework on the rights of

indigenous peoples with respect to their cultural heritage................................................................ 4

A. Human rights instruments ........................................................................................................ 5

B. United Nations Educational, Scientific and Cultural Organization,

cultural heritage and indigenous peoples ................................................................................. 6

C. Convention on Biological Diversity and Nagoya Protocol ...................................................... 7

D. World Intellectual Property Organization ................................................................................ 7

III. Overview of the jurisprudence on rights relating to cultural heritage .............................................. 8

A. Human rights treaty bodies ...................................................................................................... 8

B. Special procedures of the Human Rights Council ................................................................... 9

C. Regional human rights institutions .......................................................................................... 9

IV. Participation of indigenous peoples in cultural heritage policies ..................................................... 10

A. Participation at the international level ..................................................................................... 11

B. Participation at the national level ............................................................................................. 12

V. Specific issues relating to the rights of indigenous peoples with respect to their cultural heritage .. 14

A. Lands, territories and cultural heritage .................................................................................... 14

B. Traditional knowledge, intellectual property and cultural heritage ......................................... 15

C. Tourism and cultural heritage .................................................................................................. 15

D. Sports and traditional games .................................................................................................... 16

VI. Cultural appropriation, restitution and repatriation .......................................................................... 16

A. Cultural misappropriation and interpretation ........................................................................... 16

B. Restitution and repatriation ...................................................................................................... 17

C. Right to cultural revitalization ................................................................................................. 18

Annex

Expert Mechanism advice No. 8 (2015): Promotion and protection of the rights

of indigenous peoples with respect to their cultural heritage ........................................................... 20

I. Introduction

1. In its resolution 27/13, the Human Rights Council requested the Expert Mechanism

on the Rights of Indigenous Peoples to prepare a study on the promotion and protection of

the rights of indigenous peoples with respect to their cultural heritage, including through

their participation in political and public life, and to present it to the Council at its thirtieth

session.

2. The Expert Mechanism called for submissions from States, indigenous peoples, non-

State actors, national human rights institutions and other stakeholders to inform the study.

The submissions received are, where permitted, available on the website of the Expert

Mechanism.1 The study also benefited significantly from presentations made at the Expert

Seminar on Indigenous Peoples’ Rights with Respect to their Cultural Heritage (Rovaniemi,

Finland, 26 and 27 February 2015), organized by the Office of the United Nations High

Commissioner for Human Rights and the University of Lapland. The Expert Mechanism

appreciates the submissions and is informed by them.

3. Although the Expert Mechanism has not specifically addressed the issue of cultural

heritage, it has given significant attention to the cultures of indigenous peoples

(A/HRC/21/53). The present study offers a comprehensive overview of the international

legal framework and jurisprudence regarding the rights of indigenous peoples with respect

to their cultural heritage and addresses specific aspects of those rights.

A. Concept of cultural heritage

4. The term “cultural heritage” has evolved considerably in recent decades. While

previously referring exclusively to the monumental remains of cultures, “cultural heritage”

has gradually come to include new categories; in particular, more emphasis has been put on

intangible cultural heritage. The 2003 Convention for the Safeguarding of the Intangible

Cultural Heritage defines intangible cultural heritage as “the practices, representations,

expressions, knowledge, skills — as well as the instruments, objects, artefacts and cultural

spaces associated therewith — that communities, groups and, in some cases, individuals

recognize as part of their cultural heritage” (art. 2). There is also increasing recognition of

the relationship between communities and cultural heritage. The Council of Europe

Framework Convention on the Value of Cultural Heritage for Society defines cultural

heritage as “a group of resources inherited from the past which people identify,

independently of ownership, as a reflection and expression of their constantly evolving

values, beliefs, knowledge and traditions. It includes all aspects of the environment

resulting from the interaction between people and places through time” (art. 2).

5. As noted by the Special Rapporteur in the field of cultural rights, although no

uniform definition exists, several international instruments and a number of references

relating to traditional knowledge and traditional cultural expressions provide useful

guidance for defining what is usually understood as cultural heritage. Noting that no list is

exhaustive, the Special Rapporteur referred to cultural heritage as “tangible heritage (e.g.

sites, structures and remains of archaeological, historical, religious, cultural or aesthetic

value), intangible heritage (e.g. traditions, customs and practices, aesthetic and spiritual

beliefs; vernacular or other languages; artistic expressions, folklore) and natural heritage

(e.g. protected natural reserves; other protected biologically diverse areas; historic parks

and gardens and cultural landscapes)” (A/HRC/17/38 and Corr.1, para. 4). She added that

1 See www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/Studyonculturalheritage.aspx.

cultural heritage should be understood as resources enabling the cultural identification and

development processes of individuals and communities which they, implicitly or explicitly,

wish to transmit to future generations (ibid., para. 6). Cultural heritage also includes

traditional knowledge and cultural expressions.

B. Indigenous peoples and cultural heritage

6. Indigenous peoples’ cultural heritage includes tangible and intangible manifestations

of their ways of life, world views, achievements and creativity, and should be considered an

expression of their self-determination and their spiritual and physical relationships with

their lands, territories and resources. While the notion of heritage encompasses traditional

practices in a broad sense, including language, art, music, dance, song, stories, sports and

traditional games, sacred sites, and ancestral human remains, for indigenous peoples the

preservation of heritage is deeply embedded and linked to the protection of traditional

territories. Indigenous cultural heritage is a holistic and inter-generational concept based on

common material and spiritual values influenced by the environment.2 It also includes bio-

cultural heritage and traditional food production systems such as rotational farming,

pastoralism, artisanal fisheries and other forms of access to natural sources.3

7. Taking into account the various understandings of culture and cultural heritage, the

Expert Mechanism proposed the following:

Indigenous peoples’ cultures include tangible and intangible manifestations of their

ways of life, achievements and creativity, and are an expression of their self-

determination and of their spiritual and physical relationships with their lands,

territories and resources. Indigenous culture is a holistic concept based on common

material and spiritual values and includes distinctive manifestations in language,

spirituality, membership, arts, literature, traditional knowledge, customs, rituals,

ceremonies, methods of production, festive events, music, sports and traditional

games, behaviour, habits, tools, shelter, clothing, economic activities, morals, value

systems, cosmovisions, laws, and activities such as hunting, fishing, trapping and

gathering. (A/HRC/21/53, para. 52)

8. It is important to acknowledge that the traditional categorization of heritage as

“tangible”, “intangible”, and “natural” demonstrates its limitations: tangible heritage carries

out meanings, while intangible heritage is often embodied in specific objects. This

categorization is particularly inappropriate in the case of indigenous peoples. It is important

to adopt a holistic approach to cultural heritage and acknowledge that the rigid legal regime

of protection for cultural heritage could be problematic for indigenous peoples.

II. Review of the international legal framework on the rights of indigenous peoples with respect to their cultural heritage

9. Standards relating to the cultural heritage of indigenous peoples are dispersed in

several international regimes, in particular in human rights instruments, United Nations

Educational, Scientific and Cultural Organization (UNESCO) instruments, intellectual

property treaties and the international environmental law and policy regime.

2 See the submission from the Asia Indigenous Peoples’ Pact.

3 See the submission from the International Indian Treaty Council.

A. Human rights instruments

10. Culture is one of the underlying pillars of the United Nations Declaration on the

Rights of Indigenous Peoples. The close relationship between the cultural rights of

indigenous peoples and their right to self-determination is reflected in article 3 of the

Declaration, which states that by virtue of their right to self-determination, indigenous

peoples may freely pursue their cultural development. The Declaration addresses the

tangible heritage, traditions and customs of indigenous peoples (art. 11); the spiritual and

religious traditions and customs of indigenous cultures (art. 12); their intangible heritage

(art. 13); and their right to uphold the dignity and diversity of their cultures and languages,

in relation to education and public information (arts. 14 and 15). More specifically,

regarding cultural heritage, the Declaration states that:

Indigenous peoples have the right to maintain, control protect and develop their

cultural heritage, traditional knowledge and traditional cultural expressions, as well

as the manifestations of their sciences, technologies and cultures, including human

and genetic resources, seeds, medicines, knowledge of the properties of fauna and

flora, oral traditions, literatures, designs, sports and traditional games and visual and

performing arts. They also have the right to maintain, control, protect and develop

their intellectual property over such cultural heritage, traditional knowledge, and

traditional cultural expressions. (art. 31)

11. The Declaration upholds the rights of indigenous peoples to develop their own

cultures and customs, to the use and control of their ceremonial objects, not to be subjected

to destruction of their cultures or to discrimination on cultural grounds, and to redress

mechanisms for action that deprives them of their cultural values.

12. The International Labour Organization Indigenous and Tribal Peoples Convention

(No. 169) contains a number of provisions relating to the cultural heritage of indigenous

peoples. Drawing attention to the distinctive contributions of indigenous peoples to the

cultural diversity of humankind (preamble), the Convention requires Governments to

promote and safeguard the cultures of indigenous peoples through special measures (arts. 2

and 4), and to recognize and protect their cultural values and practices (art. 5).

Governments are required to respect and safeguard the cultural and traditional values of

indigenous peoples and (art. 13) their use and management of the land and natural resources

(arts. 14 and 15), and ensure that the traditional activities of indigenous peoples are

strengthened and promoted (art. 23). Governments are required to consult with and ensure

the effective participation of indigenous peoples at all levels of decision-making in

political, legislative and administrative bodies and processes which may affect them

directly, including their cultural development, and ensure that studies are carried out to

assess, inter alia, the cultural impact of development activities on indigenous peoples

(arts. 6 and 7).

13. The right of access to and enjoyment of cultural heritage forms part of international

human rights law (A/HRC/17/38, para. 78). A number of international human rights

instruments provide the legal basis for the right of access to and enjoyment of cultural

heritage, including the Universal Declaration of Human Rights (art. 27), the International

Covenant on Economic, Social and Cultural Rights (art. 15) and the International Covenant

on Civil and Political Rights (art. 27). The obligation to respect the right to take part in

cultural life “includes the adoption of specific measures aimed at achieving respect for the

right of everyone, individually or in association with others or within a community or group

… to have access to their own cultural and linguistic heritage and to that of others.”4

14. The International Covenant on Civil and Political Rights provides for the right of

members of minorities to enjoy their own culture, practice their own religion and use their

own language (art. 27), while the Convention on the Rights of the Child explicitly extends

that right to persons of indigenous origin (art. 30) and requires that the education of the

child be directed to “the development of respect for his or her cultural identity, language

and values…” (art. 29).

15. At the regional level, the African Charter on Human and Peoples’ Rights guarantees

the right of every individual to freely take part in the cultural life of his or her community

(art. 17) and upholds the right of all peoples to their cultural development and the equal

enjoyment of the common heritage of mankind (art. 22). The American Declaration of the

Rights and Duties of Man proclaims the right of every person to take part in the cultural life

of the community (art. 13).

16. Overall, international and regional human rights instruments guarantee the right to

take part in cultural life, the right to enjoy one’s own culture, and the right to maintain,

control, protect and develop one’s cultural heritage.

B. United Nations Educational, Scientific and Cultural Organization,

cultural heritage and indigenous peoples

17. Cultural heritage is a central part of the mandate of UNESCO. The 1972 Convention

concerning the Protection of the World Cultural and Natural Heritage (the World Heritage

Convention), addresses both cultural heritage (e.g. sacred sites, monuments or buildings)

and natural heritage (e.g. biodiversity hotspots or outstanding geological formations).

18. More recent instruments provide greater recognition of the cultural heritage of

indigenous peoples. The Universal Declaration on Cultural Diversity (2001) protects the

exchange of cultural heritage, calling specifically for respect for human dignity and

commitment to the human rights of minorities and indigenous peoples as a key element to

defend cultural diversity (art. 4). The 2003 Convention on the Safeguarding of Intangible

Cultural Heritage recognizes that “communities, in particular indigenous communities,

groups and, in some cases, individuals, play an important role in the production,

safeguarding, maintenance and re-creation of the intangible cultural heritage” (preamble).

The Operational Directives for the implementation of the Convention emphasize that State

activities may only be undertaken with the active involvement or participation of the

concerned communities, groups and individuals. In particular, the free, prior and informed

consent of the concerned communities is required to inscribe intangible cultural heritage

elements on the List of Intangible Cultural Heritage in Need of Urgent Safeguarding or the

Representative List of the Intangible Cultural Heritage of Humanity and to include

programmes, projects or activities in the register of best practices (paras. 1, 2, 7 and 101).

19. The 2005 Convention on the Protection and Promotion of the Diversity of Cultural

Expressions refers to the State obligation to pay “due attention” to creating an environment

conducive to enabling indigenous peoples to create, produce, disseminate and access their

cultural heritage through their cultural expressions (art. 7 (a)).

4 Committee on Economic, Social and Cultural Rights, general comment No. 21 (2009), para. 50.

C. Convention on Biological Diversity and Nagoya Protocol

20. The 1992 Convention on Biological Diversity promotes protection of the natural and

cultural heritage of indigenous peoples through the conservation of biological diversity and

the fair and equitable sharing of the benefits arising out of the utilization of genetic

resources (arts. 1 and 19). It requires States to “respect, preserve and maintain knowledge,

innovations and practices of indigenous and local communities embodying traditional

lifestyles relevant for the conservation and sustainable use of biological diversity … and

encourage the equitable sharing of the benefits arising from the utilization of such

knowledge, innovations and practices” (art. 8 (j)). The Nagoya Protocol on Access to

Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their

Utilization (2010) is particularly relevant as it requires States to uphold the established

rights and customary laws of indigenous peoples and ensure their participation in the

implementation of the Protocol (arts. 5 and 12). The Protocol protects access to indigenous

cultural heritage by requiring States to take measures to obtain the prior informed consent

and involvement of indigenous communities for access to relevant genetic resources (art. 6)

and traditional knowledge (art. 7).

21. The Food and Agricultural Organization of the United Nations International Treaty

on Plant Genetic Resources for Food and Agriculture, recognizing the enormous

contribution of indigenous communities to food production worldwide, requires the

Contracting parties to take measures to protect traditional knowledge relevant to plant

genetic resources for food and agriculture (art. 9) and promote wild crops and plants by

supporting the efforts of indigenous communities (art. 5).

D. World Intellectual Property Organization

22. The World Intellectual Property Organization (WIPO) has three conventions that are

particularly relevant to the cultural heritage of indigenous peoples. The Berne Convention

for the Protection of Literary and Artistic Works (1886) provides a mechanism to ensure

international protection of anonymous, pseudonymous and unpublished works, including

traditional cultural expressions (art. 15); the WIPO Performances and Phonograms Treaty

(1996) provides for international protection for performances and phonographic recordings

of expressions of folklore (arts. 2 and 33); and the Beijing Treaty on Audiovisual

Performances (2012), which, upon entry into force, will provide protection to performers of

expressions of folklore with regard to authorizing their performances in audiovisual media.

23. In 2000, WIPO members established an Intergovernmental Committee on

Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore to serve

as a forum to discuss intellectual property issues arising in the context of access to genetic

resources and benefit-sharing, and protection of traditional knowledge and traditional

cultural expressions. In 2009, the Committee initiated formal text-based negotiations with

the objective of reaching agreement on texts of international legal instruments to ensure the

effective protection of genetic resources, traditional knowledge and traditional cultural

expressions.

24. Although a multitude of legal regimes exist to protect cultural heritage, there is a

lack of adequate integration of protections for indigenous peoples. Such complex and

parallel systems of protection of cultural heritage leads to fragmentation within a multitude

of legal frameworks, which ultimately do not adequately protect the cultural heritage of

indigenous peoples. The systems fail to recognize that, for indigenous peoples, cultural

heritage is holistic and encompasses their spiritual, economic and social connections to

their lands and territories.

III. Overview of the jurisprudence on rights relating to cultural heritage

A. Human rights treaty bodies

25. Article 27 of the International Covenant on Civil and Political Rights protects the

cultural rights of indigenous peoples. In its general comment No. 23 (1994), the Human

Rights Committee observed that “culture manifests itself in many forms, including a

particular way of life associated with the use of land resources, especially in the case of

indigenous peoples” (para. 7). With regard to the relationship between land and cultural

rights, the approach is that, where land is of central significance to the sustenance of a

culture, the right to enjoy one’s culture requires the protection of land5 and the recognition

of land rights for indigenous peoples, as reiterated in several concluding observations and

individual communications of the Committee. Avoiding the danger of adopting an overly

rigid or “frozen” approach to the definition of cultural activities, the Committee has

consistently underlined that indigenous peoples who have adapted their methods of carrying

out traditional activities over the years and have incorporated the use of modern technology

are not prevented from invoking protection under the Covenant.6

26. The Committee on Economic, Social and Cultural Rights has been particularly

proactive in recognizing the cultural rights of indigenous peoples.7 In its general comment

No. 21, the Committee noted that:

Indigenous peoples have the right to act collectively to ensure respect for their right

to maintain, control, protect and develop their cultural heritage, traditional

knowledge and traditional cultural expressions, as well as the manifestations of their

sciences, technologies and cultures, including human and genetic resources, seeds,

medicines, knowledge of the properties of fauna and flora, oral traditions, literature,

designs, sports and traditional games, and visual and performing arts. (para. 37)

27. The Committee has also expressed concern about the lack of adequate protection for

and information on the intellectual property rights and cultural heritage of indigenous

peoples (E/C.12/RUS/CO/5, para. 34) and the restrictions to land and resources and the lack

of involvement of indigenous peoples in decision-making processes regarding land rights,

which pose a threat to the realization of their cultural life (E/C.12/TZA/CO/1-3, para. 29).

28. The Committee on the Elimination of Racial Discrimination made a direct

connection between the cultural rights and land rights of indigenous peoples, and between

their language and cultural heritage.8 It recommended that States parties respect indigenous

culture, history, language and way of life as an enrichment of the State’s cultural identity

(CERD/C/IDN/CO/3, para. 16).

5 Jérémie Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors

(Ardsley, New York, Transnational Publishers Inc., 2006), p. 115.

6 See, for example, Human Rights Committee, communication No. 511/1992, Länsman et al. v.

Finland, Views adopted on 26 October 1994, para. 9.3.

7 See the Committee’s general comments No. 17 (2005) and No. 21 (2009).

8 Committee on the Elimination of Racial Discrimination, general recommendation No. 23 (1997),

para. 3.

B. Special procedures of the Human Rights Council

29. The Special Rapporteur of the Sub-Commission on Prevention of Discrimination

and Protection of Minorities, Erica-Irene Daes, conducted studies on the protection of the

cultural and intellectual property of indigenous peoples (E/CN.4/Sub.2/1993/28) and on the

protection of the heritage of indigenous peoples (E/CN.4/Sub.2/1995/26). The studies

considered measures to strengthen respect for the cultural and intellectual property of

indigenous peoples, and included the draft principles and guidelines for the protection of

the heritage of indigenous peoples (E/CN.4/Sub.2/1995/26, annex), which set standards for

governments to ensure that the heritage of indigenous peoples survives for future

generations and continues to enrich the common heritage of humanity.

30. The Special Rapporteur in the field of cultural rights has made recommendations on

the right of access to and enjoyment of cultural heritage for all persons, which are relevant

to indigenous peoples (A/HRC/17/38). She underlined the need to build stronger

relationships between cultural institutions and communities, including indigenous peoples,

and to develop good practices (para. 16).

31. The Special Rapporteur on the rights of indigenous peoples has consistently

addressed the issue of cultural heritage in thematic and country reports, documenting

instances where indigenous peoples have had major concerns regarding the protection of

their cultural heritage, such as the endangerment of their sacred places, heritage languages

and cultures (A/HRC/21/47/Add.1, appendix II, para. 107), and the lack of control by

indigenous peoples to establish their historical cultural heritage sites (A/HRC/15/37/Add.5,

para. 64). The Special Rapporteur has highlighted how the cultural heritage of indigenous

peoples could be put in jeopardy when extractive industries or large-scale developmental

projects invade indigenous peoples’ territories,9 and the importance of education,

particularly the role of indigenous languages, in the preservation of cultural heritage.10 In

particular, the Special Rapporteur has drawn attention to the lack of inclusion and

participation of indigenous peoples in the nomination and management of world heritage

sites under the World Heritage Convention (A/67/301, paras. 33–42).

C. Regional human rights institutions

32. Regional courts and human rights commissions have lent robust support to the rights

of indigenous peoples to their cultural heritage. The Inter-American Commission on

Human Rights and the Inter-American Court of Human Rights have firmly established that

States should create effective mechanisms for titling and demarcating the lands, territories

and resources of indigenous peoples in accordance with their customs, cultures and

traditions.11 The Court has emphasized that the close relationship between indigenous

peoples and their land must be recognized and understood as the fundamental base of their

culture, spiritual life, integrity, economic survival and cultural preservation.12

33. The African Commission on Human and Peoples’ Rights has also examined the

right to cultural heritage as it applies to indigenous peoples. In the Endorois decision, the

9 A/HRC/21/47/Add.3, para. 69; A/HRC/18/35/Add.1, para. 10; A/HRC/15/37/Add.1, para. 242.

10 E/CN.4/2005/88/Add.4, paras. 10 and 17; E/CN.4/2006/78/Add.4, para. 26; A/HRC/4/32/Add.4,

para. 33.

11 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua,

judgement of 31 August 2001 (Series C, No. 79), para. 153.

12 Inter-American Court of Human Rights, Yakye Axa Indigenous Community v. Paraguay, judgement

of 17 June 2005 (Series C, No. 125), para. 131.

Commission highlighted that article 17 of the Charter was dual dimensional in both its

individual and collective nature, protecting, on the one hand, individuals’ participation in

the cultural life of their community and, on the other hand, obliging the State to promote

and protect the traditional values recognized by a community.13 It added that article 17

required governments to take measures aimed at the conservation, development and

diffusion of culture, such as promoting awareness and enjoyment of the cultural heritage of

national ethnic groups and minorities and of indigenous sectors of the population.14

IV. Participation of indigenous peoples in cultural heritage policies

34. Effective participation in decision-making processes relating to cultural heritage is

crucial for indigenous peoples, who are often the victims of both cultural and natural

heritage protection policies that fail to take their rights and perspectives into consideration.

35. The rights to effective participation, consultation and consent are strongly expressed

in several articles of the United Nations Declaration on the Rights of Indigenous Peoples.

Article 32 requires States to 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. This provision relates to any decisions

that would affect the lands and territories of indigenous peoples, including the classification

of their lands as cultural or natural heritage sites.

36. Free, prior and informed consent is a key element of human rights jurisprudence.

The Committee on Economic, Social and Cultural Rights calls on States to “respect the

principle of free, prior and informed consent of indigenous peoples in all matters covered

by their specific rights”,15 and has also put great emphasis on such consent in the context of

their cultural heritage (E/C.12/TZA/CO/1-3, para. 29). The Human Rights Committee, in

several concluding observations, has highlighted that it is essential for States to ensure the

participation of indigenous peoples in decision-making processes that would affect their

cultural rights, stressing the need to seek their consent on all matters affecting them

(CCPR/C/PAN/CO/3, para. 21; CCPR/C/KEN/CO/3, para. 24).

37. The Special Rapporteur in the field of cultural rights has underlined that the

participation of individuals and communities in cultural heritage matters is crucial and that.

the power differentials that exist between, as well as within, communities must be taken

into consideration, as they impact the ability of individuals and groups to effectively

contribute to the identification, development and interpretation of what should be

considered as a common “culture” or shared cultural heritage. She considered that it was

also important to fully respect the freedom of individuals to participate or not in one or

several communities, to develop their multiple identities, to access their cultural heritage as

well as that of others, and to contribute to the creation of culture, including through the

contestation of dominant norms and values within the communities they belong to as well

as those of other communities (A/HRC/17/38 and Corr.1, para. 10). In this respect,

particular attention should be paid to the position of women within indigenous

13 African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development and

Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 276/2003

(2010), para. 241.

14 Ibid., para. 246. 15 See the Committee’s general comment No. 21 (2009), para. 37.

communities, and States should ensure that diverse women’s voices within specific

communities are heard and that their human rights are not sacrificed in the name of culture

(A/67/287, para. 80).

A. Participation at the international level

38. Since the adoption of the Declaration, there have been repeated complaints by

indigenous peoples and human rights organizations about violations of the rights of

indigenous peoples in the implementation of the World Heritage Convention.16 There is no

procedure to ensure the participation of indigenous peoples in the nomination and

management of World Heritage sites nor is there a policy to ensure their free, prior and

informed consent to the nomination of such sites.17 Both the Permanent Forum on

Indigenous Issues and the Expert Mechanism have emphasized the importance of obtaining

the free, prior and informed consent of indigenous peoples with regard to territories

proposed for nomination and inscription as World Heritage sites. The Expert Mechanism

also noted that “robust procedures and mechanisms should be established to ensure

indigenous peoples are adequately consulted and involved in the management and

protection of World Heritage sites” (A/HRC/18/42, annex, para. 38).

39. The Special Rapporteur in the field of cultural rights recommended that States seek

the free, prior and informed consent of source communities before adopting measures

concerning their specific cultural heritage, in particular in the case of indigenous peoples, in

accordance with the United Nations Declaration on the Rights of Indigenous Peoples. She

specifically emphasized that no inscription on UNESCO lists relating to cultural heritage or

national lists or registers should be requested or granted without the free, prior and

informed consent of the communities concerned (A/HRC/17/38 and Corr.1, para. 80).

40. In 2011, the African Commission on Human and Peoples’ Rights adopted a

resolution condemning the inscription of Lake Bogoria National Reserve in Kenya on the

World Heritage List, as the World Heritage Committee had failed to respect the rights of

the Endorois community.18 In the resolution, the African Commission noted that many sites

“have been inscribed without the free, prior and informed consent of the indigenous peoples

in whose territories they are located and whose management frameworks are not consistent

with the principles of the UN Declaration on the Rights of Indigenous Peoples”. The

resolution drew attention to the general lack of respect for the rights of indigenous peoples

in the context of nomination of World Heritage sites.

41. The International Union for the Conservation of Nature World Conservation

Congress adopted a resolution calling on the World Heritage Committee to review and

revise its procedures in consultation with indigenous peoples to ensure that their rights are

upheld and implemented in the management and protection of existing World Heritage

sites. The aim of the resolution is to make the decision-making process consistent with the

Declaration on the Rights of Indigenous Peoples and to ensure that no World Heritage sites

16 E/2010/43-E/C.19/2010/15, para. 131; A/HRC/18/42, annex, para. 38; and letter from the Special

Rapporteur on the rights of indigenous peoples to the Director of the World Heritage Centre

(A/HRC/25/74, p. 127). 17 “World Heritage and Indigenous Peoples — A Call to Action”, Report of the International Expert

Workshop on the World Heritage Convention and Indigenous Peoples (Copenhagen, 20 and 21

September 2012), p. 60.

18 Resolution No. 197 on Protection of Indigenous Peoples’ Rights in the Context of the World Heritage

Convention and the Designation of Lake Bogoria as a World Heritage site.

are established in the territories of indigenous peoples without their free, prior and informed

consent.19

42. International Finance Corporation performance standard 7 on indigenous peoples

states that “where a project may significantly impact on critical cultural heritage that is

essential to the identity and/or cultural, ceremonial, or spiritual aspects of Indigenous

Peoples’ lives, priority will be given to the avoidance of such impacts. Where significant

project impacts on critical cultural heritage are unavoidable, the client will obtain the FPIC

of the Affected Communities of Indigenous Peoples” (para. 16). The adoption of this

standard by a corporation that supports investments globally is significant and indicates that

human rights obligations are not limited to the public sector. Nonetheless, it has been

widely observed that the requirements of participation and consultation, and in particular

the requirement to obtain the free, prior and informed consent of indigenous peoples, are

not yet properly implemented and respected at the international level.

43. Some questions have also been raised with regard to the rights of women in the

implementation of the UNESCO Convention for the Safeguarding of the Intangible Cultural

Heritage. The Special Rapporteur in the field of cultural rights stressed that article 13 (d)

(ii) of the Convention, according to which access to cultural heritage should be ensured

“while respecting customary practices governing access to specific aspects of such

heritage”, cannot be interpreted as permitting gender-based discrimination. Distinctions

must not lead to indirect or structural discrimination against women and girls (A/67/287,

para. 63).

44. Since its inception, the WIPO Intergovernmental Committee has been trying to

support an inclusive approach to promote the direct involvement of all stakeholders,

especially indigenous peoples and local communities. During all its sessions, indigenous

peoples may intervene on any issue on the agenda and make draft proposals, which could

be incorporated into the text under discussion if supported by at least one member State. In

2005, the WIPO General Assembly established a voluntary fund to facilitate the

participation of accredited indigenous peoples and local communities. Through this

mechanism, representatives of more than 80 indigenous peoples and local communities

worldwide have received funding to participate in sessions of the Intergovernmental

Committee.

B. Participation at the national level

45. In its general comment No. 21, the Committee on Economic, Social and Cultural

Rights emphasized that States had an obligation to allow and encourage the participation of

indigenous peoples in the design and implementation of laws and policies that affect

them.20 In particular, States parties should obtain their free, prior and informed consent

when the preservation of cultural resources, especially those associated with their way of

life and cultural expression, are at risk. This includes decisions to classify their territories

under the label of Cultural or Natural Heritage Sites.

46. The Special Rapporteur in the field of cultural rights has stressed that concerned

communities and individuals should be consulted and be able to actively participate in the

process of identification, selection, classification, interpretation, preservation/safeguard,

stewardship and development of cultural heritage. Furthermore, States have the duty not to

19 Resolution WCC-2012-Res-047 on Implementation of the United Nations Declaration on the Rights

of Indigenous Peoples in the context of the UNESCO World Heritage Convention. 20 See the Committee’s general comment No. 21 (2009), para. 55 (e).

destroy, damage or alter cultural heritage, at least not without the free, prior and informed

consent of concerned communities, and to take measures to preserve/safeguard cultural

heritage from destruction or damage by third parties (A/HRC/17/38, para. 80 (b) and (c)).

47. Indigenous peoples in Canada are actively involved in the protection of their cultural

heritage and have been supported by formal legislation in this area. For example, the

Province of British Columbia enacted the Heritage Conservation Act of 1996, which was

created in order “to encourage and facilitate the protection and conservation of heritage

property in British Columbia.” This includes ensuring that indigenous peoples are consulted

on the status of cultural heritage sites and objects within their traditional lands and

territories. Another positive example is the recent nomination of Pimachiowin Aki as a

World Heritage site, a joint effort of two Canadian provinces and the First Nations

affected.21

48. The Australian National Committee of the International Council on Monuments and

Sites adopted the Burra Charter for Places of Cultural Significance (2013) as a best practice

cultural heritage conservation and management guide. The conservation principles set out

in the Burra Charter form the basis for management of all places of cultural significance in

Australia. The Charter establishes appropriate decision-making procedures and ensures the

participation of cultural groups affected by the decisions.22

49. The 2012 Free, Prior and Informed Consent Guidelines of the National Commission

on Indigenous Peoples of the Philippines mentions sacred grounds, burial sites and cultural

and heritage sites as areas excluded for any activity except for exclusive purposes where

they are identified. However, it seems that its implementation remains a huge challenge,

owing to the manipulation of the process by interested parties.23

50. The indigenous peoples of the States of the Caribbean Community (CARICOM)

participated in the creation of a draft CARICOM regional framework, which seeks to

establish a regional instrument for the protection of genetic resources, traditional

knowledge and traditional cultural expressions, while ensuring the free, prior and informed

consent of the rightful owners/holders/beneficiaries on mutually agreed terms and with fair

and equitable benefit-sharing.24

51. While there are some good practices emerging at the national level, there are still

many instances where indigenous peoples have not been allowed to participate in decision-

making processes that affect their cultural heritage.25 In 2011, for example, the Western

Ghats (India) and the Sangha Trinational (Congo/Cameroon/Central African Republic)

were inscribed as natural World Heritage sites, despite the fact that in both situations,

serious objections were raised about the lack of any meaningful participation of indigenous

peoples living in the respective areas. In both cases, there was a blatant lack of respect for

the free, prior and informed consent of the concerned communities, as the affected

21 See the submission from the International Work Group on Indigenous Affairs and the Forest Peoples

Programme.

22 See the submission from Australia.

23 See the submission from the Asia Indigenous Peoples Pact.

24 See the submission from the Aldet Centre-Saint Lucia.

25 S. Disko and H. Tugendhat (eds.), World Heritage Sites and Indigenous Peoples’ Rights

(International Work Group for Indigenous Affairs, Forest Peoples Programme and Gundjeihmi

Aboriginal Corporation, document No. 129, 2014).

indigenous peoples had not even seen the submitted nomination documents, which had not

been made publicly available.26

V. Specific issues relating to the rights of indigenous peoples with respect to their cultural heritage

A. Lands, territories and cultural heritage

52. Access to and use of lands, territories and the environment are essential elements of

cultural heritage for many indigenous peoples. The connection between land rights and

cultural heritage is strongly embedded in international legal instruments and in international

jurisprudence. Many human rights institutions have highlighted that ownership, control and

management of their ancestral territories constitutes an essential element of the cultural

heritage of indigenous peoples.27 The Committee on Economic, Social and Cultural Rights

calls on States to “respect the rights of indigenous peoples to their culture and heritage and

to maintain and strengthen their spiritual relationship with their ancestral lands and other

natural resources traditionally owned, occupied or used by them, and indispensable to their

cultural life.”28

53. Both the African Commission on Human and Peoples’ Rights and the Inter-

American Court of Human Rights have given prominence to the importance of land and

territorial rights in their decisions, emphasizing that land rights constitute a foundation for

the cultural integrity of indigenous peoples, including their rights to culture, religion,

health, development and natural resources.29 Both recognize the spiritual value that

indigenous peoples attach to their territories as part of their cultural heritage. The protection

of sacred sites is a key element of indigenous peoples’ territorial rights, and therefore of

their cultural heritage.

54. Lack of recognition of indigenous peoples’ land rights and their relationships with

their territories negatively affects their right to enjoy, access and promote their cultural

heritage. As such, no policy or legislation can adequately address the cultural heritage of

indigenous peoples without recognizing their fundamental rights to their lands and

territories.

55. The establishment of World Heritage sites, or other forms of protected areas can

have a negative impact on indigenous peoples because, often, their ancestral rights over

their lands and territories are not respected or protected. In many nature-protected areas,

including areas inscribed on the World Heritage List, narrow restrictions are imposed on

traditional practices and activities, such as hunting, gathering, farming or animal husbandry,

in violation of the cultural and subsistence rights of indigenous peoples. To be included on

the World Heritage List, sites must be of “outstanding universal value”, a concept which

can lead to management frameworks that prioritize the protection of those heritage aspects

26 Joint statement on continuous violations of the principle of free, prior and informed consent in the

context of UNESCO’s World Heritage Convention, endorsed by over 70 indigenous organizations

and NGOs, submitted to the World Heritage Committee in May 2011. 27 Jérémie Gilbert, “Indigenous peoples’ heritage and human rights”, S. Disko and H. Tugendhat (eds.),

World Heritage Sites and Indigenous Peoples’ Rights (see footnote 25 above).

28 General comment No. 21 (2009), para. 49 (d).

29 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua,

para. 149; and African Commission on Human and Peoples’ Rights, Centre for Minority Rights

Development and Minority Rights Group International on behalf of Endorois Welfare Council v.

Kenya, para. 16.

at the expense of the land rights of indigenous peoples. As a result, the protection of world

heritage can undermine indigenous peoples’ relationship with their traditional lands,

territories and resources, as well as their livelihoods and cultural heritage, especially in sites

where the natural values are deemed to be of outstanding universal value but the cultural

values of indigenous peoples are not taken into account.

56. Non-State actors who invade indigenous peoples’ territories often negatively impact

the fundamental connection between land rights and cultural heritage. Extractive industries

and other business can result in profound and often irreversible damage to the cultural

heritage of indigenous peoples. There is an urgent need to protect indigenous natural

heritage from the operations of extractive industries and to recognize indigenous peoples’

substantive rights to self-determination.

B. Traditional knowledge, intellectual property and cultural heritage

57. Traditional knowledge can be understood as a living body of knowledge that is

developed, sustained and passed on from generation to generation within a community,

often forming part of its cultural and spiritual identity. It encompasses knowledge, know-

how, skills, innovations and practices. Traditional knowledge also encompasses traditional

cultural expressions, including dances, songs, handicrafts, designs, ceremonies, tales, or

other artistic or cultural expressions. Intellectual property protection could make it possible

to protect traditional remedies and indigenous crafts and music against misappropriation

and enable communities to control and benefit collectively from their commercial

exploitation.

58. In recent years, indigenous peoples, local communities and governments, mainly in

developing countries, have demanded intellectual property protection for traditional forms

of creativity and innovation. Indigenous peoples have expressed concern that existing

international mechanisms to protect intellectual property are inadequate. They note that the

intellectual property system focuses on protecting the intellectual property of individuals,

rather than collectives, and views intellectual property as alienable, which is not consistent

with indigenous peoples’ laws and policies related to their knowledge (A/HRC/21/53,

para. 62). Furthermore, indigenous peoples reject the “public domain” status of traditional

knowledge and traditional cultural expressions and argue that it opens them up to

misappropriation and misuse.

C. Tourism and cultural heritage

59. Cultural heritage has acquired enormous economic value as one of the mainstays of

the tourism industry, often negatively impacting the rights of indigenous peoples. The

inscription of sites on the World Heritage List is a catalyst for rapid tourism development.

However, indigenous peoples rarely benefit from the often large-scale developments on

their territories.

60. The Ngorongoro Conservation Area in the United Republic of Tanzania, which is

classified as a World Natural Heritage site and constitutes a key tourist destination,

provides very little benefit to the indigenous peoples of the area.30 Pastoralist organizations

have urged the Government to ensure that the income accruing from tourism in the area is

30 W. Olenasha, “A World Heritage Site in the Ngorongoro Conservation Area”, S. Disko and H.

Tugendhat (eds.), World Heritage Sites and Indigenous Peoples’ Rights, p. 214 (see footnote 25

above).

distributed equally. This is certainly not an isolated situation. It is essential that benefit-

sharing mechanisms be established in cases of tourism development on indigenous

territories.

61. Misappropriation of the cultural heritage of indigenous peoples by the tourism

industry is another issue. For example, the Saami costume, a symbol of the cultural heritage

of the Saami people, is misused in many ways by the tourism industry in Finland. Gift

shops often sell handicrafts with Saami designs that are not produced by indigenous crafters

or use traditional Saami styles and colours in products that are in no way related to Saami

culture. Imitations of the Saami costume are also often misused in tourism as employees’

uniforms.31 Such misappropriation of indigenous peoples’ cultural heritage by the tourism

industry has detrimental effects on their identity and self-image. It is important that States

monitor the tourism industry to ensure the protection of the cultural heritage of indigenous

peoples.

D. Sports and traditional games

62. Sports and traditional games have been recognized as integral parts of the rights of

indigenous peoples to maintain, control, protect and develop their cultural heritage,

traditional knowledge and traditional cultural expressions, as affirmed in article 31 of the

Declaration. This right to sports and traditional games has been explicitly recognized by the

Permanent Forum on Indigenous Issues, in the report on its fourth session (E/2005/43).

63. The benefits and value of sports and traditional games, which are also alluded to in

the Convention on the Rights of the Child, are an important component in ensuring that

indigenous peoples are able to freely determine and pursue their cultural development as

part of their right to self-determination, as set out in articles 3 and 5 of the Declaration.

64. The Mato Grosso Declaration, adopted at the Second International Sports Congress

held in Cuiabá, Brazil, from 9 to 16 November 2013, called on States and governments to

join indigenous peoples in partnership and mutual respect in implementing their right to

self-determination through sports and traditional games as well as the manifestations of

their traditional knowledge and cultural expressions (A/HRC/EMRIP/2014/CRP.2, annex,

para. 2).

VI. Cultural appropriation, restitution and repatriation

A. Cultural misappropriation and interpretation

65. Many indigenous peoples are affected by the misappropriation of their cultural

heritage, which may take many forms, including commodification, the use of indigenous

peoples’ imagery and symbols in marketing, and the misappropriation of traditional songs.

A recent settlement included the requirement to recognize the indigenous composer of the

Maori haka (tribal war dance) whenever it is used in public or commercial situations.32

66. Cultural misinterpretation is another issue that negatively impacts the cultural

heritage of indigenous peoples. This occurs when visitor centres, interpretive signage,

31 See the submission from the Saami Parliamentary Council of Finland; and the presentation by

Piia Nuorgam, Expert Seminar on Indigenous Peoples’ Rights with Respect to their Cultural Heritage,

2015.

32 See the submission from the New Zealand Human Rights Commission.

information brochures, guided tours or audio guides on cultural or natural heritage sites do

not provide correct information regarding indigenous peoples’ cultural or natural heritage

or do not reflect their particular interpretation of the cultural or natural heritage in question.

67. Museums are regarded as sources of education and cultural understanding. In

particular, museums provide a space for displaying artefacts and objects that represent

particular events and the relationship between indigenous and non-indigenous peoples. For

example, the National Museum of the American Indian and the Canadian Museum for

Human Rights, among others, display original copies of treaties signed between the

Government of Canada, the British Crown, the Government of the United States of

America and indigenous peoples. The significance of those displays is the vital role of

spirituality and the cultural ceremony of treaty-making. Museums are an important space

for the promotion and appreciation of indigenous cultural heritage. The Sámi Museum Siida

is an example of how museums that are managed by indigenous peoples themselves play a

key role in the preservation, promotion and transmission of cultural heritage.33

68. However, museums often contribute to the misappropriation of the cultural heritage

of indigenous peoples. Many museums, both private and public, hold and display the

cultural heritage of indigenous peoples without the consent of the peoples concerned. For

example, the Swedish National Museum of Ethnography currently holds a ceremonial deer

head (Maaso Kova), a sacred item of the highest spiritual and cultural significance for the

Yaqui Nation, used in the Yaqui Deer Dance ceremony. Despite many official requests for

restitution, the museum authorities have refused to return the deer head.34 Unfortunately,

this is not an isolated situation. Many cultural items and human remains of indigenous

peoples are held by public museums and by private collectors worldwide, without the free,

prior and informed consent of the peoples concerned.

B. Restitution and repatriation

69. The right to redress and restitution where violations of the rights of indigenous

peoples have occurred is a foundational element to ensuring reconciliation and the future

commitment to protecting the rights of indigenous peoples. Under human rights law, there

is a strong principle in favour of restitution when a violation has occurred. The Declaration

affirms that “States shall provide redress through effective mechanisms, which may include

restitution, developed in conjunction with indigenous peoples, with respect to their cultural,

intellectual, religious and spiritual property taken without their free, prior and informed

consent or in violation of their laws, traditions and customs” (art. 11).

70. The establishment and management of protected cultural heritage sites have often

resulted in indigenous peoples’ dispossession of and alienation from their traditional lands

and resources. In such cases, indigenous peoples are entitled to restitution of their ancestral

lands. The right to restitution of land and territories obtained without their consent

constitutes a key component of indigenous peoples’ rights.35

71. The repatriation of the cultural heritage of indigenous peoples is an important aspect

of such restitution. The ancient burial grounds of many indigenous communities have been

disrespected and the communities concerned have asked for the repatriation of human

33 Presentations by Päivi Magga and Eija Ojanlatva, Expert Seminar on Indigenous Peoples’ Rights with

Respect to their Cultural Heritage, 2015.

34 See the submission from the International Indian Treaty Council.

35 Committee on the Elimination of Racial Discrimination, general recommendation No. 23 (1997),

para. 5.

remains and sacred and cultural objects, whether held in private or public collections.36 The

General Assembly affirmed and recognized the importance of repatriating indigenous

peoples’ ceremonial objects and human remains.37

72. Although some potential avenues for redress or protection might exist in legal terms,

notably via the International Institute for the Unification of Private Law Convention on

Stolen or Illegally Exported Cultural Objects (2005), in reality it is extremely difficult for

indigenous peoples to receive proper protection and reparation when their cultural heritage,

particularly intangible heritage, is misappropriated. While the role of public authorities is

crucial to ensuring such repatriation, the repatriation of ceremonial objects and human

remains requires the cooperation of the places where the objects and remains are stored,

such as museums and auction houses.

73. Some legislation and policies stipulating repatriation of indigenous peoples’ cultural

heritage exist. In 2011, the Australian Government adopted a policy on indigenous

repatriation which facilitates the return of Aboriginal and Torres Strait Islanders’ ancestral

remains from overseas institutions to their communities of origin. To date, this programme

has facilitated the return of over 1,400 ancestral remains and over 1,400 sacred objects from

within Australian collections, and brought home more than 1,200 ancestral remains to

Australia from overseas.38 Other examples include the Native American Grave Protection

and Repatriation Act and the National Museum of the American Indian Act in the United

States.39 In Canada, the First Nations Sacred Ceremonial Objects Repatriation Act creates a

mechanism by which cultural heritage sites and objects can be protected, preserved and

repatriated. However, numerous examples throughout the world exist where restitution and

repatriation are not respected and enforced. One such example is the recent legal case

against indigenous chiefs in Canada, including Bernie Makokis, under the Wildlife Act,

after they had offered a sacred headdress as a gift to a non-indigenous guest from the

United States.

C. Right to cultural revitalization

74. Article 11 of the Declaration states that “indigenous peoples have the right to

practise and revitalize their cultural traditions and customs”. During the Expert Seminar on

Indigenous Peoples’ Rights with Respect to their Cultural Heritage, many presentations

highlighted how important the process of cultural revitalization is for the cultural heritage

of indigenous peoples. Some positive examples of indigenous peoples taking the initiative

to revitalize their cultural heritage exist, such as the revitalization of the Maori language, or

the use of bilingual education programmes and radio to strengthen and revitalize indigenous

languages in Mexico.40

75. The increasing recognition of food production systems and seeds as cultural heritage

is another instance of cultural revitalization. In Guatemala, for example, corn is considered

intangible cultural heritage due to its historical, cultural, and spiritual value.41

76. In terms of good practices, the Indigenous Rights Programme of the National

Commission for the Development of Indigenous Peoples, in Mexico, has implemented a

programme on cultural rights, which supports community-level initiatives to revitalize

36 See the submission from the International Repatriation Project.

37 General Assembly resolution 69/2, para. 27.

38 See the submission from Australia.

39 See the submission from Human Rights Advocates.

40 See the submissions from Cultural Survival and from Mexico. 41 See the submission from Guatemala.

cultural heritage among indigenous peoples, including languages, music and traditional

medicine. This includes training for indigenous youth on the protection of cultural heritage.

To date, the programme has supported 505 community initiatives.42 Another important

element relating to the revitalization of indigenous cultures is the recognition of indigenous

women as active agents of transformation. Recent studies have demonstrated that

indigenous women play an immense role in the revitalization and the transmission of the

cosmovision and cultural heritage of indigenous peoples.43

42 See the submission from Mexico.

43 See the submission from Comité de América Latina y el Caribe para la Defensa de los Derechos de la

Mujer.

Annex

Expert Mechanism advice No. 8 (2015): Promotion and protection of the rights of indigenous

peoples with respect to their cultural heritage

A. General

1. The cultural heritage of indigenous peoples is a holistic and inter-generational

concept based on common material and spiritual values and includes distinctive

manifestations in language, spirituality, membership, the arts, literature, traditional

knowledge, customs, rituals, ceremonies, methods of production, festive events, music,

sports and traditional games, behaviour, habits, tools, shelter, clothing, economic activities,

morals, value systems, cosmovision, laws and activities such as hunting, fishing, trapping

and gathering.

2. The cultural heritage of indigenous peoples is comprised of all objects, sites, plants

and animal species, customs and practices, expressions, beliefs and knowledge, the nature

or use of which has been transmitted from generation to generation, and which are regarded

as pertaining to a particular people or its territory.

3. The cultural heritage of indigenous peoples includes tangible and intangible

manifestations of their ways of life, achievements and creativity, and should be considered

an expression of their self-determination and of their spiritual and physical relationships

with their lands, territories and resources.

4. The right of access to and enjoyment of cultural heritage forms part of international

human rights law and represents an important aspect of the rights of indigenous peoples,

including the right to take part in cultural life, the right to enjoy their own culture and the

right to self-determination. The right of indigenous peoples to self-determination implies

their right to maintain, control, protect and develop their own cultural heritage.

5. The safeguard and development of the cultures of indigenous peoples require the

protection of their lands, territories and resources. Cultural rights entail rights to land and

natural resources, and imply an obligation to protect the cultural heritage of indigenous

peoples through the recognition of their rights to own, control and manage their ancestral

territories.

6. Heritage policies, programmes and activities affecting indigenous peoples should be

based on full recognition of the inseparability of natural and cultural heritage, and the deep-

seated interconnectedness of intangible cultural heritage and tangible cultural and natural

heritage.

7. For indigenous peoples, cultural and natural values are inseparably interwoven and

should be managed and protected in a holistic manner. It is imperative that all the

instruments that derive from such regimes and relate to the cultural heritage of indigenous

peoples are interpreted in the light of the United Nations Declaration on the Rights of

Indigenous Peoples, which is the most specific, representative and comprehensive

instrument on indigenous cultural heritage.44

8. Indigenous peoples have the right to redress when their cultural heritage is

misappropriated without their free, prior and informed consent. This includes a right to

repatriation and restitution.

B. Advice for States

9. States should recognize the value and livelihood aspects of the cultural heritage of

indigenous peoples, which is not limited to the protection of specific manifestations,

symbols or objects, but also includes tangible and intangible manifestations of their ways of

life, achievements and creativity, and of their spiritual and physical relationships with their

lands, territories and resources.

10. Indigenous peoples should be consulted and enabled to actively participate in the

whole process of identification, evaluation, classification, interpretation, preservation,

safeguarding, monitoring, stewardship and development of their cultural and natural

heritage.

11. States should revisit the draft Principles and guidelines for the protection of the

heritage of indigenous peoples (E/CN.4/Sub.2/1995/26, annex), with a view to adopting

them as an instrument to protect the cultural heritage of indigenous peoples.

12. In accordance with the United Nations Declaration on the Rights of Indigenous

Peoples, States have the obligation to seek the free, prior and informed consent of

indigenous peoples before adopting measures affecting their cultural or natural heritage. No

inscription on lists of the United Nations Educational, Scientific and Cultural Organization

(UNESCO) relating to the cultural or natural heritage of indigenous peoples or national lists

or registers should be requested or granted without the free, prior and informed consent of

the indigenous peoples concerned.

13. States need to legally recognize and protect the right of indigenous peoples to their

lands, territories and resources through appropriate measures and policies, including

declaring cultural heritage sites, sacred sites and other areas of spiritual significance to

indigenous peoples as “no-go zones” for extractive industries, tourism development and

other development projects which have not received the free, prior and informed consent of

the indigenous peoples concerned.

14. States need to harmonize their national legislations based on the provisions of the

Declaration and taking note of the outcome document of the World Conference on

Indigenous Peoples (General Assembly resolution 69/2), and should develop national action

plans for the protection and promotion of the cultural heritage of indigenous peoples.

15. In the case of cross-border indigenous peoples, bordering States should ensure the

protection of cultural rights on an equal basis.

16. States should ensure that the benefits arising from the use of the lands, territories and

resources of indigenous peoples’ as World Heritage sites are defined by and genuinely

accrue to the indigenous peoples concerned, in a fair and equitable manner.

17. States should guarantee that indigenous peoples have available financial resources

that effectively allow them to maintain, safeguard and protect their cultural heritage,

44 Presentations by Alexandra Xanthaki, Expert Seminar on Indigenous Peoples’ Rights with Respect to

their Cultural Heritage, 2015.

including through the recognition of indigenous peoples’ right to control and benefit from

their natural resources, traditional knowledge and traditional cultural expressions.

18. States should provide measures for the revitalization and transmission of the cultural

heritage of indigenous peoples in formal and informal education, including the promotion

and protection of indigenous peoples’ languages through effective mother tongue education

for indigenous children.

19. States should take effective measures to assess, redress and remedy the effects of

past injustices and violations of the rights of indigenous peoples by ensuring the restitution

and repatriation of their cultural heritage.

20. States should increase their financial support to museums that are owned and

managed by indigenous peoples, as part of the redress and repatriation process.

21. States should strengthen their legal and policy frameworks to encourage public and

private museums to reach out to indigenous communities in order to better understand the

impact of restoring stolen cultural heritage.

22. States should ensure that investors and corporations respect the cultural heritage of

indigenous peoples. Businesses have a responsibility to protect the right to cultural heritage;

if operations have a negative impact on the realization of that right, businesses have a

responsibility to remedy that impact.

23. States that have not already done so should ratify the Convention for the

Safeguarding of the Intangible Cultural Heritage, as a measure to increase the protection

afforded to indigenous peoples’ intangible cultural heritage.

C. Advice for international organizations

24. There is a need for better coordination and collaboration between institutions and

agencies of the United Nations system on matters relating to cultural heritage and its human

rights dimensions so as to increase coherence and avoid duplication of work. This issue

could be addressed in the system-wide action plan on indigenous peoples that is currently

being developed, as requested by the General Assembly in the outcome document of the

World Conference on Indigenous Peoples.

25. Relevant special procedures should monitor State policies on access to cultural

heritage to ensure that they respect the principles of the Declaration and that States act in

accordance with the provisions in the International Labour Organization Indigenous and

Tribal Peoples Convention No. 169 that protect cultural heritage.

26. International organizations working in the field of cultural heritage, such as

UNESCO, the World Intellectual Property Organization (WIPO) and other United Nations

specialized agencies, must integrate and respect the rights proclaimed in the Declaration in

their work. This includes obtaining the free, prior and informed consent of indigenous

peoples before any decision affecting their lands is taken.

27. The World Heritage Committee should take effective measures to ensure that the

protection of World Heritage does not undermine indigenous peoples’ relationship with

their traditional lands, territories and resources, their livelihoods and their rights to protect,

exercise and develop their cultural heritage and expressions.

28. The World Heritage Committee needs to review its current procedures and

Operational Guidelines, with the full and effective participation of indigenous peoples, to

ensure that the implementation of the World Heritage Convention is consistent with the

Declaration.

29. The World Heritage Committee should adopt changes to the criteria and regulations

for the assessment of “outstanding universal value” so as to ensure that the values assigned

to World Heritage sites by indigenous peoples are fully and consistently recognized as part

of their outstanding universal value.

30. UNESCO and the World Heritage Committee should dedicate resources to the

development of mechanisms to ensure that indigenous peoples can effectively participate in

all World Heritage Convention processes affecting them and that their rights, priorities,

values and needs are duly recognized, considered and reflected.

31. UNESCO should strengthen its efforts to finalize its Policy on Indigenous Peoples,

in cooperation with indigenous peoples and the three United Nations mechanisms with

specific mandates regarding the rights of indigenous peoples.

32. UNESCO should consider developing a charter on sports and traditional games that

protects the cultural heritage of indigenous peoples in the area of sports and traditional

games.

33. United Nations institutions should continue to develop guidelines and other norms

and practices aimed at the protection and inclusion of traditional cultural heritage, including

the role of traditional knowledge, in enhancing community resilience and sustainable

development.

34. WIPO and its Intergovernmental Committee should ensure that indigenous peoples

fully participate in the current negotiations and that their free, prior and informed consent is

sought and obtained before any new international instruments for the protection of

traditional knowledge is adopted. The process in which laws governing the use of

traditional knowledge, cultural expressions and genetic resources are developed needs to

conform with the rights guaranteed under the Declaration, particularly article 31.

35. The Human Rights Council should consider calling for an immediate halt to any

removal of ancestral remains and cultural items indigenous peoples for any reason, unless

their free, prior and informed consent is obtained.

D. Advice for indigenous peoples

36. Indigenous peoples are the primary keepers of their cultural heritage. As such they

have an active role to play in its preservation, transmission and revitalization.

37. Indigenous peoples should ensure the equal participation of women in discussions

and decisions on cultural heritage at the level of the community.

38. Indigenous peoples should engage and take an active part in international fora

related to the protection of cultural heritage, notably under the aegis of WIPO and

UNESCO.

39. Indigenous peoples should participate in the practical Workshops for Indigenous

Peoples and Local Communities on intellectual property, traditional knowledge and

traditional cultural expressions that are organized by WIPO, which impart knowledge of the

main principles of the intellectual property system, and explain, among other things, the

rationale, objectives and methodology of the negotiations that are currently being

conducted by the Intergovernmental Committee.

40. Indigenous peoples should participate actively to educate the non-indigenous

population about the importance of the collective protection of the heritage of indigenous

peoples.

41. Indigenous peoples should ensure the inter-generational transmission of their

cultural heritage within their communities.

E. Advice for museums

42. Museums and other places in which the cultural heritage of indigenous peoples is

stored should inform the relevant indigenous peoples and develop mechanisms to facilitate

the return of such cultural heritage when sought by the indigenous peoples concerned.