36/22 Report of the United Nations High Commissioner for Human Rights on the rights of indigenous peoples

GE.17-11274(E)



Human Rights Council Thirty-sixth session

11-29 September 2017

Agenda items 2 and 3

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of the

High Commissioner and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Report of the United Nations High Commissioner for Human Rights on the rights of indigenous peoples

Summary

The present report is submitted pursuant to Human Rights Council resolution 33/13.

It contains information on relevant developments relating to human rights bodies and

mechanisms and outlines the activities undertaken by the Office of the United Nations High

Commissioner for Human Rights at Headquarters and in the field that contribute to the

promotion and full application of the provisions of the United Nations Declaration on the

Rights of Indigenous Peoples, and follow-up on the effectiveness of the Declaration. The

report covers the period from May 2016 to May 2017.

United Nations A/HRC/36/22

I. Introduction

1. In its resolution 33/13 on human rights and indigenous peoples, the Human Rights

Council requested the United Nations High Commissioner for Human Rights to continue to

submit to it an annual report on the rights of indigenous peoples containing information on

relevant developments in human rights bodies and mechanisms. It also requested the High

Commissioner to report on activities undertaken by the Office of the United Nations High

Commissioner for Human Rights (OHCHR) at Headquarters and in the field that contribute

to the promotion of, respect for and full application of the provisions of the United Nations

Declaration on the Rights of Indigenous Peoples.

2. The present report focuses on the work of OHCHR on the rights of indigenous

peoples, including the participation of indigenous peoples in United Nations processes and

support provided to the mandates of the Special Rapporteur on the rights of indigenous

peoples and the Expert Mechanism on the Rights of Indigenous Peoples. The report

provides illustrative examples of OHCHR activities and initiatives undertaken at

Headquarters and by field offices that contribute to the realization of the rights of

indigenous peoples. It also outlines recent developments within United Nations human

rights bodies and mechanisms, including treaty bodies, and the activities of special

procedure mandate holders, as far as their work pertains to indigenous peoples.

II. Participation of indigenous peoples in United Nations processes

3. Every year, OHCHR supports indigenous peoples in improving their knowledge of

and participation in United Nations human rights bodies and mechanisms.

4. During the reporting period, 29 indigenous peoples’ representatives (13 women and

16 men) from Argentina, Australia, Bangladesh, the Bolivarian Republic of Venezuela

Brazil, Canada, Chile, Colombia, the Democratic Republic of the Congo, Ethiopia, French

Guyana, Guatemala, India, Israel, Kenya, Mali, Mexico, Morocco, Nepal, the Plurinational

State of Bolivia, the Russian Federation, Rwanda, Thailand and the United States of

America participated in the annual indigenous fellowship programme, which took place in

Geneva between June and July 2016. The fellows were introduced to issues of particular

relevance to indigenous peoples, such as the human rights of indigenous peoples in the

context of business and extractive industries, international financial institutions and

women’s rights. All the fellows attended the ninth session of the Expert Mechanism, at

which they organized their own side event on the topic of indigenous perspectives on the

right to health. Moreover, a national fellow worked with the OHCHR Senior Human Rights

Adviser in Nairobi.

5. OHCHR also organized a senior indigenous fellowship programme over the course

of four months to provide on-the-job training. In 2016, the senior indigenous fellow came

from Australia and was involved in the facilitation of events and the preparation of

analytical briefs, reports and speeches. She also participated in trainings on critical human

rights issues and attended the sessions of the Human Rights Council and the Expert

Mechanism.

6. Over the past 31 years, the mandate of the United Nations Voluntary Fund for

Indigenous Peoples has been expanded seven times, in order to support the participation of

indigenous peoples in an increasing number of human rights mechanisms. In 2016, the

Fund allowed the allocation of 98 grants to support the participation of representatives from

indigenous peoples’ organizations and communities in sessions of the Permanent Forum on

Indigenous Issues (25), the Expert Mechanism (20), the Human Rights Council (2),

including its universal periodic review (1), and of treaty bodies (9).

7. The Fund also supported meetings convened to follow up the outcome document of

the World Conference on Indigenous Peoples, including the General Assembly consultation

process aiming to enhance the participation of indigenous peoples’ representatives in

United Nations meetings on issues affecting them. The participation of the beneficiaries of

the Fund at those two meetings was crucial to their success.

8. In addition to providing financial support to enable the participation of indigenous

peoples in United Nations meetings, the Fund allocated resources to equip indigenous

peoples with the tools needed to make them truly effective participants in those meetings.

For example, in partnership with the organization Indigenous Peoples’ Centre for

Documentation, Research and Information, the Fund organized human rights training

modules in Geneva and New York, in the margins of the sessions of the Expert Mechanism

and the Permanent Forum.

III. Activities of the Office of the United Nations High Commissioner for Human Rights and recent developments in human rights bodies and mechanisms

9. Despite considerable advances in terms of participation of indigenous peoples,

democratic space for indigenous human rights defenders is shrinking in many places. In

parallel, indigenous peoples are rarely consulted on development priorities and strategies,

extractive industries and the use of lands, territories and other resources that have an impact

on their rights. The lack of access to justice for indigenous peoples in State legal systems,

the lack of statutory recognition and adequate protection of indigenous and community land

rights and the negative impact of environmental destruction on the health and food security

of indigenous peoples all contribute to the challenges experienced by indigenous peoples

worldwide.

10. In order to address these concerns and translate the promise of the United Nations

Declaration on the Rights of Indigenous Peoples into reality, OHCHR provided technical

assistance to Member States, indigenous peoples, civil society organizations and United

Nations bodies. OHCHR strengthened its efforts to involve indigenous peoples in all

international initiatives that affect them, including the implementation of the 2030 Agenda

for Sustainable Development. OHCHR has assisted national partners in reforming and

implementing legal frameworks, policies, strategies and national action plans, as called for

in the outcome document of the World Conference.

11. In many contexts, the work of OHCHR has focused on supporting improved follow-

up to human rights mechanisms’ recommendations on indigenous peoples’ rights. During

the reporting period, indigenous peoples’ rights were mentioned in the recommendations

and concluding observations of several treaty bodies, and in the reports, communications

and other activities of several special procedure mandate holders. These United Nations

human rights mechanisms provided detailed, country-specific recommendations to improve

the implementation of indigenous peoples’ rights, including on ensuring that indigenous

peoples have the resources and support to build their capacity, so as to be able to claim their

rights and interact on equal footing with the authorities, the private sector and human rights

mechanisms, free from harassment and reprisals. They also highlighted the need that all

those whose decisions have an impact on indigenous peoples and their lands — from State

authorities to business enterprises and international financial institutions — are familiarized

with the standards of the Declaration and understand that they are commitments that need

to be respected.

A. Business, extractive industries and human rights

12. One of the key areas of concern for OHCHR and human rights mechanisms has been

the protection of indigenous peoples’ rights in connection with business and extractive

industries.

13. A number of OHCHR field presences have paid special attention to the procedural

and substantive aspects required for States to respect the principle of free, prior and

informed consent and to enable the meaningful participation of indigenous peoples in the

context of large-scale projects and economic interests over indigenous lands, territories and

natural resources.

14. For example, the Office of the United Nations High Commissioner for Human

Rights OHCHR in the Plurinational State of Bolivia monitored two consultation processes

for mining projects. The Office urged the Mining Administrative Jurisdictional Authority to

engage in a genuine dialogue with indigenous communities in order to protect and promote

their collective interests.

15. The Office of the United Nations High Commissioner for Human Rights in

Honduras has advocated for the inclusion of international human rights standards in the

government-led process to discuss a draft law on the right to free, prior and informed

consent. In March 2017, the Office held several meetings with the main national private

and industrial associations to promote the Guiding Principles on Business and Human

Rights and the United Nations “Protect, Respect and Remedy” Framework. Furthermore, at

the request of the Honduran authorities, the Special Rapporteur conducted a visit to the

country in April 2017 to follow up to the recommendations on the process to regulate free,

prior and informed consent and consultation.

16. In March 2017, OHCHR organized an expert seminar in Boulder, United States of

America, jointly with the University of Colorado Law School. The main objective of the

seminar was to collect substantive information for the study by the Expert Mechanism on

good practices and challenges in business and in access to financial services by indigenous

peoples.

17. In August 2016, the Special Rapporteur submitted to the Human Rights Council at

its thirty-third session the second of three reports dedicated to international investment

agreements and their impacts on indigenous peoples’ rights (A/HRC/33/42). In her report to

the General Assembly at its seventy-first session (A/71/229), the Special Rapporteur chose

to explore how conservation measures affect indigenous people and recommended means to

increase respect for indigenous peoples’ rights. In February 2017, the Special Rapporteur

carried out a follow-up visit to examine the situation of indigenous peoples in the United

States, in particular to the situation related to extractive industries.

18. During the reporting period, the Committee on Economic, Social and Cultural

Rights recommended to Honduras that it draft clear guidelines and regulations for

evaluating the social and environmental impact of natural resource exploitation projects, in

particular those carried out in territories of indigenous or Afro-Honduran peoples. The

Government was urged to ensure that communities affected by the exploitation of natural

resources are consulted, receive compensation for damages or losses incurred and receive a

share of the profits from said activities.

19. The Human Rights Committee urged Colombia to step up its efforts to ensure the

timely and effective implementation of the plans developed for the preservation of the 34

indigenous peoples identified as being at risk of cultural or physical extinction or

disintegration. Many of those indigenous peoples are represented in the indigenous human

right defenders network in Putumayo developed by the Office of the United Nations High

Commissioner for Human Rights in Colombia, supporting the effective use of tools and

mechanisms for the protection of their territories. The Office also supported the indigenous

Nasa people of Putumayo, in coordination with the regional Ombudsman’s Office in

implementing a protection mechanism called “tutela” for claiming their rights, including in

connection with planned extractive activities in the territory.

20. The Committee on Economic, Social and Cultural Rights urged the Philippines to

ensure that free, prior and informed consent of the indigenous peoples concerned is

obtained before granting licences to private companies; and that indigenous peoples are

represented by their own freely chosen representatives in local decision-making bodies,

such as local mining boards and development units.

21. The Committee recommended that Sweden review relevant legislation, policies and

practices that regulate activities that may have an impact on the rights and interests of the

Sami people, including development projects and the operations of extractive industries,

and in particular the Minerals Act, the Minerals Strategy and the Environmental Code.

22. The Committee on the Rights of the Child recommended that Peru require all

companies to undertake assessments, consultations and full public disclosure of the

environmental, health-related and human rights impacts of their business activities and their

plans to address such impacts, ensuring that all affected groups of indigenous peoples are

involved in relevant consultation processes and that their views, including the views of

indigenous children, are duly taken into account.

23. On 1 May 2017, the Committee on the Elimination of Racial Discrimination issued

an admissibility decision concerning a petition against Sweden submitted by the Head of

the Saami Council Human Rights Unit. The petitioners alleged that Sweden had breached

its obligation under the Convention when granting to a private mining company an

exploitation concession consisting of three open-pit mines in a region where pasture areas

of critical importance to reindeer herding cycle are located. The petition has been declared

admissible and the Committee will review its merits in an upcoming session.

B. Human rights defenders

24. During the period under review, the shrinking of democratic spaces and the

criminalization of protest activities continued to pose many challenges for human right

defenders working for the rights of indigenous peoples.

25. At the high-level event to mark the tenth anniversary of the United Nations

Declaration on the Rights of Indigenous Peoples, the Assistant Secretary-General for

Human Rights recalled that, according to the non-governmental organization (NGO)

Frontline Defenders, out of 281 human rights defenders killed in 25 countries in 2016,

almost half had been defending their land, environment and indigenous rights, despite the

repeated calls for protection of indigenous human rights defenders by the Special

Rapporteur and others.

26. The protection of those defending indigenous peoples’ rights was also raised by

various OHCHR field presences. The Office of the United Nations High Commissioner for

Human Rights in the Plurinational State of Bolivia issued a press release to urge the Public

Ministry to investigate the facts and identify those responsible for the threats and acts of

aggression against human rights defenders and their NGOs, who supported the process of

indigenous autonomy in Charagua Iyambae, by a group of local settlers who opposed the

indigenous autonomous process.

27. The Office of the United Nations High Commissioner for Human Rights in

Colombia prioritized the monitoring of situations of violence, insecurity and abuses

affecting indigenous peoples, including attacks against indigenous leaders. It also provided

training and technical assistance to 150 indigenous guards from the Nasa, Embera Chami

and Motilón Bari communities, enabling them to exercise their authority in cases of

breaches of their own laws and to coordinate with public security forces in cases that fall

under the ordinary jurisdiction of the competent prosecution office.

28. The Office of the United Nations High Commissioner for Human Rights in

Guatemala has registered and documented dozens of cases of threats and attacks against

indigenous human rights defenders, especially in the context of the defence of lands,

territories and natural resources, coordinating with relevant State authorities to provide and

follow up on protection measures for the victims, including with the Unit for the Analysis

of Attacks against Human Rights Defenders of the Ministry of the Interior. OHCHR is also

providing technical assistance to the Government in the development of a public policy on

the protection of human rights defenders.

29. Together with the International Labour Organization (ILO), the Office provided

technical assistance to the Ministry of Labour and Social Security for developing a protocol

to monitor the situation of agricultural workers, the majority of whom are indigenous.

30. The Office of the United Nations High Commissioner for Human Rights in

Honduras monitored issues related to lack of land demarcation and alleged corruption on

the provision of titles over indigenous lands, territories and resources, observing an increase

in violence against indigenous human rights defenders, who faced smear campaigns,

criminalization and severe attacks against their life and physical integrity.

31. The Office has also been monitoring closely the case of the murder in March 2016

of the indigenous human rights defender and environmentalist Berta Cáceres, including the

implementation of protection measures of the National Protection Mechanisms granted to

her relatives and lawyers and to the members of the Council of Popular and Indigenous

Organizations of Honduras. The Inter-American Commission on Human Rights has also

granted them precautionary measures. The Office has coordinated efforts with the

International Advisory Group of Experts and various American NGOs, including the

Mission to Support the Fight against Corruption and Impunity in Honduras.

32. Human rights treaty bodies have also raised concerns about the situation of human

rights defenders working on indigenous peoples’ rights. The Committee on Economic,

Social and Cultural Rights expressed alarm at the defamation of, threats made against and,

in particular, murder of human rights defenders, including leaders of indigenous and Afro-

Honduran groups. The Committee also expressed concerns about the murders of Berta

Cáceres and René Martínez and recommended that Honduras investigate those murders,

duly punish those found responsible and widely disseminate the results of the

investigations.

33. The Committee for the Elimination of Racial Discrimination expressed concerns at

the constant threats against and murders of human rights defenders and leaders of

indigenous and Afro-Colombian peoples and recommended that Colombia adopt effective

and timely measures to prevent acts of violence against human rights defenders, including

leaders and defenders of the rights of indigenous and Afro-Colombian peoples, ensure

effective protection of their lives and personal safety and conduct thorough investigations

and bring effective prosecutions of persons who threaten their lives and physical safety.

34. In his report to the General Assembly at its seventy-first session (A/71/281), the

Special Rapporteur on the situation of human rights defenders chose to explore the issue of

environmental human rights defenders and recommended that States guarantee the right of

indigenous communities to consultation and participation in decisions at every stage of a

project’s life cycle. He also urged United Nations organizations and agencies to address the

legal gaps that heighten risks for environmental human rights defenders, including weak

environmental standards and laws protecting the rights of indigenous peoples, their land

rights and customary title to territories and resources.

C. Early-warning mechanisms and monitoring of human rights violations

35. During the reporting period, OHCHR pursued several activities aimed at assisting

national authorities and other relevant actors in taking steps to prevent or mitigate human

rights violations, including by supporting early warning mechanisms, risk assessments and

rapid response capacities.

36. In October 2016, the Office of the United Nations High Commissioner for Human

Rights in the Plurinational State of Bolivia provided technical assistance and support to the

Ombudsman’s Office in relation to the Tacana people’s complaint, which referred to the

existence of indigenous peoples living in isolation in a territory where activities of oil

exploration were taking place. Despite the complaint, oil operations continued. The Tacana

people requested that the Inter-American Commission on Human Rights take precautionary

measures.

37. The Office of the United Nations High Commissioner for Human Rights in

Colombia supported the work of various protection mechanisms, such as the National

Protection Unit of the National Commission on Human Rights for Indigenous Peoples. The

Office also worked with indigenous authorities in strengthening their control and self-

governance of lands, territories and resources that they possess by reason of traditional

ownership.

38. Human rights treaty bodies also raised issues related to early warning. The

Committee on the Elimination of Racial Discrimination recommended that Colombia

redouble its efforts to ensure full respect for human rights and international humanitarian

law in relation to the territories of indigenous peoples, inter alia by ensuring that the risk

reports issued by the early warning system are duly taken into account by the relevant

authorities, particularly the Inter-Agency Early Warning Committee.

39. The Office of the United Nations High Commissioner for Human Rights in

Guatemala carried out over 50 missions to observe specific cases of alleged human rights

violations in the country, focusing on the human rights situation of indigenous agricultural

workers, cases of threats and attacks against indigenous human rights defenders and cases

of potential or escalating social conflicts resulting from extractive industries’ activities

affecting indigenous peoples. Many of those missions were carried out together with the

National Human Rights Institution.

40. The Office of the United Nations High Commissioner for Human Rights in

Honduras carried out more than 10 monitoring missions to observe social conflicts

escalation resulting from land tenure issues, development and extractive projects.

41. On an ongoing basis, the Special Rapporteur on the rights of indigenous peoples has

responded to specific cases of alleged human rights violations. Over the year in review, the

Special Rapporteur has taken action on some 38 cases, including in the following countries:

Australia, Brazil, Canada, Colombia, the Democratic Republic of the Congo, Ecuador,

Ethiopia, Guatemala, Honduras, India, Indonesia, Kenya, Mexico, Morocco, Nicaragua,

Panama, Paraguay, the Philippines, the United Republic of Tanzania and the United States.

The Special Rapporteur also issued a communication to the World Bank.

D. Access to justice and strengthening the legal protection of indigenous

peoples’ rights

42. The Office of the United Nations High Commissioner for Human Rights in the

Plurinational State of Bolivia assisted the Supreme Court and the Plurinational

Constitutional Court in the elaboration of a protocol for coordination and cooperation

between ordinary and indigenous jurisdictions, taking into account international and

national standards on indigenous peoples’ rights and the Court’s jurisprudence. In May

2017, the Office contributed to the third meeting of authorities of indigenous jurisdictions,

during which the protocol was validated, with the participation of more than six hundred

indigenous peoples’ representatives.

43. The Office also supported the establishment of the first autonomous indigenous

community of Charagua Yiambae and the election of the first Guarani autonomous

government. The Office monitored the process, including the referendum for the adoption

of the autonomous status, the elections and the entry into operation of the indigenous

authorities in 2017.

44. From May 2016 to March 2017, within the framework of discussing a new

constitution in Chile, the Office of the United Nations High Commissioner for Human

Rights in Chile together with the United Nations Development Programme, ILO, the United

Nations Children’s Fund and indigenous representatives, at the invitation of the Chilean

Ministry of Social Development, integrated a consultative council tasked to observe and

provide technical advice on how the State can ensure and conduct a participatory process

with indigenous peoples in line with international standards. Over 17,016 indigenous

people from all regions of the country participated in the various meetings.

45. In August of 2016, the Office participated in a training session on indigenous

peoples’ rights in constitution-making. The Office delivered a presentation on indigenous

peoples’ rights under the Declaration. The event gathered over 100 representatives from all

regions of the country, including public officers from the Ministry of Social Development

and the Indigenous National Service, as well as representatives from universities,

indigenous communities and United Nations agencies.

46. The Office of the United Nations High Commissioner for Human Rights in

Colombia participated in key decision-making processes, such as the international forum on

free, prior and informed consent. The forum served as a platform for the exchange of good

practices between indigenous peoples from Colombia, Mexico, Norway and Peru. The

Office also provided advice to the National Commission for the Coordination of the

National Judicial System, including the Special Indigenous Jurisdiction, on devising a work

plan to strengthen indigenous peoples’ traditional systems for the administration of justice.

47. In the light of its general recommendation No. 31 (2005) on the prevention of racial

discrimination in the administration and functioning of the criminal justice system, the

Committee on the Elimination of Racial Discrimination recommended that Colombia

improve the functioning of the special indigenous courts, guarantee access to justice and

uphold respect for the fundamental right to due process, with guarantees, in cases involving

members of indigenous peoples.

48. The Office of the United Nations High Commissioner for Human Rights in

Honduras participated as an observer in the Inter-institutional Commission for the

implementation of the sentences handed down by the Inter-American Court of Human

Rights in the cases of Punta Piedra v. Honduras and Triunfo de la Cruz v. Honduras

(October 2015).1 In its rulings, the Court found Honduras to be in breach of its obligation to

guarantee the collective rights of the Garifuna people due to its failure to provide an

effective response to conflicting land titles affecting the communities. The Court requested

Honduras to take steps to provide effective reparation and guarantees of non-repetition. It

also urged Honduras to review legislative instruments found to be in breach of the right to

free, prior, and informed consent, such as the General Mining Act of 2013.2

49. The Office of the United Nations High Commissioner for Human Rights in

Guatemala has provided technical assistance to the Office of the Attorney General in

developing internal guidelines for public prosecutors to avoid the criminalization of human

rights defenders, which often result in serious cases of social and cultural disintegration

within indigenous communities.

50. Through its Maya Programme, the Office of the United Nations High Commissioner

for Human Rights in Guatemala has assisted indigenous peoples and the Government in

relation to 11 strategic litigation cases involving issues related to access to land and

resources, the protection of traditional knowledge in textile weavings, the legal recognition

of indigenous communities’ radios and the provision of adequate and culturally appropriate

health services, achieving important legal and policy advances in these areas. Also in the

framework of its Maya Programme, the Office supported the judiciary in developing an

educational module for judges on access to justice for indigenous peoples. The Office

carried out trainings for judges in Quetzaltenango, the second largest city in Guatemala,

which has a significant indigenous population. The Office further assisted the Office of the

Attorney General in developing a policy on access to justice for indigenous peoples, taking

into account social, cultural, language and economic barriers that impede access to justice

for indigenous peoples in the country. The policy, the product of several years’ work, was

launched on 24 May 2017, and contemplates the creation of a secretariat on indigenous

peoples within the Office of the Attorney General.

51. The Office has supported the translation of the Constitution of Guatemala in four

indigenous languages. A child-friendly version of the Constitution was launched at the

department of Quiché in February 2017, together with representatives of the Ministry of

Education and the President of the Constitutional Court.

52. As part of the technical secretariat of the National Dialogue on Justice Reform, the

Office provided guidance on relevant human rights standards in order to include the

recognition of indigenous jurisdictions within the Constitution of Guatemala, among other

proposed reforms to strengthen the justice system. It also facilitated the participation of

indigenous representatives.

1 Available from www.corteidh.or.cr/docs/casos/articulos/seriec_304_esp.pdf and

www.corteidh.or.cr/docs/casos/articulos/seriec_305_esp.pdf.

2 See

www.poderjudicial.gob.hn/CEDIJ/Leyes/Documents/Ley%20General%20de%20Mineria%202013%

20(14,6mb).pdf.

53. The Office supported the implementation of reparation measures, including through

health programmes and housing, ordered in the historic February 2016 judgment of the

Sepur Zarco case, which marked the first case where crimes committed against Q’eqchi’

indigenous women, including sexual slavery during an armed conflict, were prosecuted in

the country.

54. The Office of the United Nations High Commissioner for Human Rights in

Honduras continued to support the work of the Inter-institutional Commission on the case

of Misquito divers. The Commission was established in 2012 following a case brought by

the Association of Disabled Divers Honduran Miskito, the Association of Misquito Indian

Women Mairin Asla Takanka and the Elder Council Almuk Nani Asla Takanka before the

Inter-American Court of Human Rights.3

55. In 2016, the Commission on Human Rights of the Philippines and OHCHR co-

organized a workshop to reinforce the capacity of the normative framework for the

protection of the rights of minorities and indigenous peoples in Mindanao province in the

Philippines. The workshops took place in Cotabato and Davao and included government

line agencies, national and regional commissions and civil society organizations. Following

the training, OHCHR was able to contribute to the revised draft national anti-discrimination

legislation.

56. The Office of the United Nations High Commissioner for Human Rights in Tunisia

provided support to an interministerial group in preparing a draft law on racial

discrimination that penalizes any discrimination on the grounds of ethnicity. The Office

also supported the national mechanism on reporting and follow-up in preparing the report to

the Committee for the Elimination of Racial Discrimination and advising civil society

organizations working on Amazigh rights with regard to their submission to the Committee.

57. The Human Rights Committee urged Ecuador to adopt a specific legal and

institutional framework governing the division of responsibilities between indigenous

courts and ordinary courts and to guarantee respect for the rights and interests of indigenous

communities, peoples and nationalities, ensuring that all members of such communities

fully enjoy their rights under the Covenant.

58. The Committee against Torture, in considering the report of Ecuador, expressed

concern that the bill on coordination and cooperation between the indigenous and ordinary

justice systems was still awaiting adoption by the National Assembly. It encouraged the

State party to take the legislative measures needed to establish mechanisms of coordination

and cooperation between the indigenous and ordinary justice systems, as prescribed by

article 171 in the Constitution of Ecuador, in order to guarantee fundamental rights and

freedoms (see CAT/C/ECU/CO/7, paras. 19-20).

59. The Committee on Enforced Disappearances for the first time made reference to

indigenous peoples in its concluding observations to Colombia (CED/C/COL/CO/1). The

Committee expressed concern about reports of serious difficulties, in practice, in searching

for disappeared persons and in identifying their remains. It recommended that the State

party intensify its efforts to ensure that all actions to identify and return remains duly take

into account the traditions and customs of the peoples or communities to which the victims

belong, in particular indigenous peoples or Afrodescendent communities.

E. Land rights and food security

60. The Office of the United Nations High Commissioner for Human Rights in

Cambodia continued to work with the Ministry of Land Management, Urban Construction

and Planning, local governments and civil society organizations to support indigenous

peoples’ efforts to apply for collective land titles and provide legal aid to communities that

have suffered from land rights violations. The Office also collaborated with the Ministry of

Rural Development and the local authorities of Koh Kong Province on the registration of

3 Available at: https://www.cidh.oas.org/annualrep/2009sp/Honduras1186-04.sp.htm.

the identity of eight indigenous communities of the Areng valley. OHCHR facilitated the

building of trust between indigenous peoples and the authorities and raised awareness of

indigenous peoples’ rights among all stakeholders. In Kampong Speu, the Office held

meetings with the provincial cadastral office to support the process of preliminary mapping

of the communal land of the Oral indigenous community, a process that has been halted

owing to a question surrounding the preliminary mapping, which the indigenous

community has opposed.

61. The Office supported the participation of indigenous representatives in ongoing

consultations on three law and policy documents related to intellectual property rights: a

draft law on agricultural land; a draft environmental code; and draft guidelines on public

participation in environmental impact assessments. The Office continued to work with the

Ministry of Land Management, Urban Construction and Planning, the Ministry of Rural

Development, local governments and civil society organizations to support the efforts of

indigenous peoples to apply for collective land titles. OHCHR assisted with the provision

of legal aid to communities that have suffered violations of their land rights. It also

supported the Bunong communities from Busra in Mondulkiri Province to better assert their

rights in relation to negotiations with a private company that had been granted a land

concession. OHCHR observed and facilitated the meetings of the tripartite committee,

which comprised representatives from the company, the Bunong communities affected by

the land concession and local authorities. As a follow-up to the project, OHCHR partnered

with an independent mediation group and committed to provide technical support to the

affected indigenous communities during the pre-mediation period. Compensation

agreements have since been reached in relation to one sacred site and the company made a

commitment to review over 100 pending land claims. The role of OHCHR as a third-party

broker helped the parties to engage in good-faith negotiations and to seek solutions to

outstanding disputes over indigenous peoples’ land and sacred forests.

62. The Office of the United Nations High Commissioner for Human Rights in

Colombia supported the establishment of an Ethnic Commission for Peace and the Defence

of Territorial Rights, an alliance of indigenous and Afro-Colombian organizations, and

contributed to its inclusion in the Havana peace dialogues between the Government and the

Revolutionary Armed Forces of Colombia (FARC). The outcome of this engagement was

the inclusion of the “Ethnic Chapter” in the final peace accord, which includes principles

applicable to the entire accord that guarantee that Afro-Colombians’ and indigenous

peoples’ rights are safeguarded. The Office also provided support to local dialogue

processes in Cauca and contributed to the agreements reached between the Uwa people and

the Government in relation to gas exploitation in their ancestral territory. It further

supported the dialogue between governmental institutions and indigenous peoples in Nariño

and Putumayo on the voluntary programmes to substitute the growing of illicit crops with

legal ones, in the framework of the implementation of the peace agreement.

63. The Office participated at the Mesa Permanente de Concertación, a national forum

in which the representatives of indigenous peoples’ main communities dialogue with the

national Government on the adoption and implementation of legislative or administrative

measures that may affect them.

64. The Office of the United Nations High Commissioner for Human Rights in

Guatemala is providing technical assistance to the institutions responsible for dealing with

land related conflicts, such as the Secretary of Agrarian Affairs and the Land Fund. There

are currently 1,448 land conflicts in Guatemala, including on the existence of overlapping

land titles, territorial limits, regularization and occupation of lands. The Office monitors

cases of forced displacement of indigenous communities reclaiming lands, from which they

were often forcibly displaced during the armed conflict and which are now under the

control of private interests. The Office is also monitoring and documenting cases of

conflicts faced by indigenous and campesino communities related to the administration of

protected areas.

65. In August 2016, OHCHR organized a three-day meeting in Nakuru, Kenya, to

enhance dialogue between members of the Endorois community, the Kenya National

Human Rights Commission and Department of Justice, as well as the Ministry of Tourism

and Kenya Welfare Service, as a follow-up to the decision by the African Commission on

Human and Peoples’ Rights on the Endorois case (276/2003), and discussed a co-

management process for Lake Bogoria.

66. In that regard, the Committee on Economic, Social and Cultural Rights noted with

concern that, in Kenya, the implementation of the decision had been long delayed, despite

its acceptance (see E/C.12/KEN/CO/2-5, para. 16). It recommended that Kenya implement

the decision without further delay and ensure that the Endorois are adequately represented

and consulted at all stages of the implementation process. It also recommended that Kenya

set up a mechanism to facilitate and monitor the implementation, with active participation

of the Endorois.

67. The Office of the United Nations High Commissioner for Human Rights in

Myanmar contributed to a national policy dialogue on the rights of indigenous peoples in

Myanmar, co-organized in Nay Pyi Taw by the Ministry of Ethnic Affairs, the Department

of Economic and Social Affairs and the Chin Human Rights Organization. The event

brought together over a hundred indigenous peoples’ representatives from different parts of

the country, strengthening ties among indigenous peoples and with interlocutors in

Government and the international community.

68. In Paraguay, OHCHR together with partners from the inter-agency thematic group

on human rights and indigenous peoples’ rights developed guidelines to promote gender

integration in relation to issues related to the right to participation and consultation and the

right to land. As a result, indigenous women are in a better position to contribute to public

policies on issues affecting them. Moreover, since 2015, OHCHR has participated as an

associate in the Joint Programme on Food and Nutrition Security in Paraguay, which

focuses on indigenous peoples and peasants communities. A key activity of the Programme

is the development of right-to-food indicators, based on OHCHR human rights indicators

and methodology.

69. In Paraguay, OHCHR also participated as an observer in negotiations in preparation

of the friendly settlement agreement between the Paraguayan State and the Ayoreo-

Totobiegosode people. The negotiations are based on the request by the Inter-American

Commission on Human Rights for the adoption of precautionary measures in favour of the

rights of the Ayoreo-Totobiegosode people, especially of the communities in voluntary

isolation, known as the Jonoine-Urasade.

70. The Committee on Economic, Social and Cultural Rights recommended that Costa

Rica protect the right of indigenous peoples to own, use, develop and control the lands,

territories and natural resources that they possess, including through such legal recognition

and protection as may be necessary, and ensure that lands occupied by non-indigenous

persons are returned to them.

71. The Special Rapporteur on contemporary forms of racism, racial discrimination,

xenophobia and related intolerance visited Argentina from 16 to 23 May 2016. In his report

on the mission (A/HRC/35/41/Add.1), he analysed the discrimination faced by indigenous

peoples, in particular in terms of access to economic, social and cultural rights, as well as

violations of civil and political rights. The Special Rapporteur also visited Australia from

28 November to 5 December 2016, during which time he addressed issues related to the

situation of indigenous peoples (Aboriginal and Torres Strait Islanders). The Special

Rapporteur also visited Fiji from 7 to 12 December 2016. In his report on the mission

(A/HRC/35/41/Add.3), he addressed challenges in the fight against racism, racial

discrimination, xenophobia and related intolerance, in particular the relationship between

the indigenous iTaukei and Indo-Fijian communities and the question of landownership.

F. Indigenous peoples’ cultural rights, right to health and violence against indigenous women and girls

72. The Office of the United Nations High Commissioner for Human Rights in

Colombia provided substantive and technical support to indigenous peoples, resulting in a

historic sentence by the Colombian Constitutional Court, which considered that the Atrato

River is “a living being”. The Office provided information to the Court and accompanied

the magistrates to travel along the river so they could witness, understand and experience

the dimensions of the destruction caused by large-scale gold mining activities using toxic

elements, such as mercury and heavy-duty machinery, in addition to forest destruction.

73. In March 2016, the Office of the United Nations High Commissioner for Human

Rights in Tunisia, together with the Ministry in charge of human rights, organized two

national consultations where civil society organizations working on the rights of the

Amazigh had the opportunity to engage in a discussion with national authorities. They

addressed concerns related to cultural rights, including the right to learn and use the

Tamazight language and to give children Amazigh names, which is not allowed currently

under Tunisian law.

74. The Office of the United Nations High Commissioner for Human Rights in

Guatemala monitored the troubling case of 41 girls, including indigenous girls, who died

following a fire in the Hogar Seguro de la Virgen de Asunción, having been locked in a

room as a disciplinary measure. The girls were living in the home under the protection of

the State. The Office made recommendations regarding the need to develop culturally

appropriate and locally based responses to child protection, in coordination with indigenous

families and communities.

75. The Human Rights Committee recommended that Ecuador take the necessary steps

to ensure that proper consultations are held with indigenous communes, communities,

peoples and nationalities with a view: (a) to obtaining their free, prior and informed consent

concerning any measure that might have a substantial impact on their way of life and their

culture; (b) to expediting the adoption of the bill on consultation with them; (c) to ensuring

that they are properly consulted during that process; and, in particular, (d) to ensuring that

no extractive or any other activities are conducted that may place the lives and livelihoods

of indigenous peoples living in isolation in a more vulnerable situation.

76. The Office of the United Nations High Commissioner for Human Rights in

Colombia contributed to making a film4 in which the Bora and Miraña peoples of the

Amazon explained how gold mining using mercury and cyanide is affecting their lands and

territories, with debilitating effects on their health. The film also illustrated how their

ancestral culture and ways of life are threatened by these activities. Furthermore, following

an agreement reached by the mesa amazónica, a coordination space between the

government of the department of Amazonas and indigenous authorities in which OHCHR

acts as a guarantor, a group of traditional authorities is building their own health calendars

and epidemiology studies according to their traditional knowledge.

77. The Office of the United Nations High Commissioner for Human Rights in

Guatemala provided technical assistance to the Ministry of Health to implement an

intercultural, comprehensive and inclusive health-care model. Through its Maya

Programme, the Office also supported the recognition of the work of indigenous midwives.

The Office is also working with State institutions to implement a 2016 judgment of the

Constitutional Court ordering the Ministry of Education to implement a bilingual and

intercultural education programme in La Antigua Santa Catarina Ixtahuacán, in the

department of Sololá.

78. The Committee for the Elimination of Racial Discrimination recommended that

Colombia allocate adequate resources to the health sector and redouble its efforts to ensure

accessibility, availability, affordability and quality of health care, paying particular

attention to the needs of indigenous and Afro-Colombian peoples through such action as the

development and implementation of intercultural health service plans that take account of

the geographical characteristics of rural areas and provide for the active participation of

indigenous and Afro-Colombian peoples. The Committee also recommended that Colombia

take the necessary steps to ensure that the policies of ethnic education and intercultural

education fulfil the objective of promoting and preserving the cultural identity of

indigenous and Afro-Colombian peoples.

4 Available from www.youtube.com/watch?v=S1XKVDAaOCM.

79. During its ninth session, in July 2016, the Expert Mechanism held a panel discussion

on the promotion and protection of the rights of indigenous persons with disabilities, a

discussion on follow-up to the World Conference on Indigenous Peoples, including the

review of the mandate of the Expert Mechanism, and a discussion on best practices and

strategies for the implementation of the United Nations Declaration on the Rights of

Indigenous Peoples. The Expert Mechanism finalized and adopted a study on the right to

health and indigenous peoples, with a focus on children and youth (A/HRC/33/57). The

study was submitted to the Human Rights Council at its thirty-third session, in September

2016.

80. On 7 and 8 July 2016, the Special Rapporteur on the rights of persons with

disabilities and the Special Rapporteur on the rights of indigenous peoples co-hosted a two-

day expert group meeting in Geneva on indigenous persons with disabilities. The experts

highlighted that indigenous persons with disabilities face exclusion, marginalization and

multiple layers of discrimination on the basis of their disability, sex and ethnic origin.

Following the meeting, for the first time ever, the situation of indigenous persons with

disabilities was discussed as a priority human rights issue at the ninth session of the Expert

Mechanism.

81. During the thirty-third session of the Human Rights Council, OHCHR organized an

annual half-day discussion on the rights of indigenous peoples with a focus on the causes

and consequences of violence against indigenous women and girls, including those with

disabilities. The panel examined structural, systemic, public forms of violence experienced

by indigenous women and girls in contemporary society, including lack of access to justice

for such violence and assessed the development of legal and policy responses to violence

against indigenous women. The panel was moderated by the Chair of the Expert

Mechanism on the Rights of Indigenous Peoples. The panellists included the Special

Rapporteur on the rights of indigenous peoples, the President of the Sami Parliament of

Norway and other experts from Australia, Mexico and the Philippines.

82. The Special Rapporteur on violence against women, its causes and consequences

visited Australia in February 2017. In her end of mission statement,5 the Special Rapporteur

highlighted issues related to violence against Aboriginal and Torres Strait Islander Women

and girls, institutionalized violence against indigenous and other women in prison and

overrepresentation of indigenous women in prison.

G. Development of national action plans

83. One of the most important elements of the outcome document of the World

Conference on Indigenous Peoples is the call for the preparation of detailed, well-resourced

national action plans to translate the standards of the Declaration into concrete measures.

Building on the extensive experience of OHCHR in supporting national plans, including

plans for human rights and for combating racism, OHCHR is developing a human rights-

based guidance for action plans, in cooperation with the Department of Economic and

Social Affairs and in close consultation with indigenous peoples and other partners.

84. During the period under review, the Office of the United Nations High

Commissioner for Human Rights in the Plurinational State of Bolivia provided technical

assistance to the Foreign Ministry for the development of an indigenous peoples’ national

action plan for the period 2017-2020, which has been incorporated into the sectorial plans

of the executive body. The process of developing a national plan was participatory and

included several indigenous peoples’ organizations.

5 Available from

www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21243&LangID=E.

H. Mandate of the Expert Mechanism on the Rights of Indigenous Peoples

85. At its thirty-third session, the Human Rights Council adopted its resolution 33/25,

amending the mandate of the Expert Mechanism. Following extensive consultations and an

expert workshop, the Council amended the mandate of the Expert Mechanism. Its new

mandate is to provide the Council with expertise and advice on the rights of indigenous

peoples as set out in the Declaration, and assist Member States, upon request, in achieving

the ends of the Declaration through the promotion, protection and fulfilment of the rights of

indigenous peoples. Specific new elements of the mandate include: upon request, assisting

Member States and/or indigenous peoples in identifying the need for and providing

technical advice regarding the development of domestic legislation and policies relating to

the rights of indigenous peoples; providing Member States, upon their request, with

assistance and advice for the implementation of recommendations made at the universal

periodic review and by treaty bodies, special procedures or other relevant mechanisms;

upon the request of Member States, indigenous peoples and/or the private sector, engaging

and assisting them by facilitating dialogue, when agreeable to all parties, in order to achieve

the ends of the Declaration; and identifying, disseminating and promoting good practices

and lessons learned regarding the efforts to achieve the ends of the Declaration, including

through reports to the Council.

86. In March 2017, OHCHR supported two intersessional meetings of the Expert

Mechanism, hosted respectively by the Government of Canada and the Government of the

Russian Federation. These intersessional meetings allowed the members of the Expert

Mechanism to reflect on their new mandate and devise strategies for its implementation.

I. Universal periodic review

87. Issues related to indigenous peoples’ rights were addressed in a number of

recommendations arising from the universal periodic review during the twenty-fifth to

twenty-seventh sessions of the Working Group on the Universal Periodic Review.

Recommendations on indigenous peoples were addressed to Antigua and Barbuda, Brazil,

Ecuador, Hungary, Papua New Guinea, Saint Vincent and the Grenadines, Suriname,

Thailand and the United Republic of Tanzania. The recommendations to either ratify or

implement the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169) and to fully

implement the United Nations Declaration on the Rights of Indigenous Peoples were made

many times. Another recommendation was to take measures to guarantee to indigenous

peoples the full respect of human rights, in particular through the establishment of

mechanisms for their prior and informed consent on issues that affect them. Other issues

that were raised related to indigenous peoples’ access to education, especially in their

mother tongue, and equal access to health care, safe drinking water, justice and political

participation. Additional recommendations on the rights of indigenous people related to the

preservation of their land, culture and resources; the adoption of measures to reduce the

negative impact of mining on the environment and the rights of indigenous peoples and

their lands, in conformity with international standards; and the establishment of formal

platforms to guarantee and protect the rights of indigenous peoples and to strengthen the

legal protection of indigenous peoples in comprehensive anti-discrimination legislation.

IV. Conclusions

88. During the reporting period, OHCHR supported indigenous peoples in finding

ways to address some of the major challenges they face, including by assisting States

in facilitating and providing access to legal remedies for indigenous peoples. It also

delivered capacity development for indigenous communities to help them make use of

national legal systems and strengthen their advocacy for the recognition of indigenous

peoples’ justice systems. OHCHR further supported States, national human rights

institutions and civil society in empowering individuals and communities to monitor

deteriorating situations and put in place systems to monitor and supervise the

activities of extractive or development companies, and in the drafting and

implementation of domestic legislation to protect indigenous peoples’ rights.

89. However, more efforts are needed to effectively fill the gaps in national laws,

policies and strategies, in line with the outcome document of the World Conference.

There is an urgent need to step up efforts to prevent the exploitation of natural

resources on indigenous lands without respecting the principle of free, prior and

informed consent and to provide support to human rights defenders working for the

rights of indigenous peoples, including improving access to justice and statutory

recognition and protection of land rights of indigenous peoples.