Office of the United Nations High Commissioner for Human Rights 40th Anniversary of the World Heritage Convention International Expert Workshop on the World Heritage Convention and Indigenous Peoples 20-21 September 2012 Copenhagen, Denmark UN EXPERT MECHANISM ON THE RIGHTS OF INDIGENOUS PEOPLES: THE RIGHT OF INDIGENOUS PEOPLES TO PARTICIPATE IN DECISION-MAKING

EMRIP’s Consideration of the Issue of World Heritage Sites * The issue of world heritage sites is an important aspect of the right to participate in decision-making. In fact, the Expert Mechanism’s most recent study provides a legal and policy framework for examining the appropriate approach to heritage sites’ nominations and designations. * This issue has been referenced and highlighted in the Expert Mechanism’s 4th and 5th reports. Mention the need to be bold in relation to the Secretary-General’s Report on Ways and Means of Promoting Participation at the United Nations of Indigenous Peoples’ Representatives on issues affecting them.

EMRIP’s Consideration of the Issue of World Heritage Sites In the 4th Session report, the Expert Mechanism identified the need for UNESCO and other UN agencies to «enable and ensure effective representation and participation of indigenous peoples in deicision-making (including management and protection of rights)» in relation to UNESCO conventions and policies that affect Indigenous Peoples. (paragraph 31) In the 5th Session report, the Expert Mechanism further elaborated upon the need for effective participation and representation of Indigenous Peoples in matters concerning the World Heritage Convention. Note that the proposal made in the 5th Session report will be further examined towards the end of this presentation upon setting out the legal and policy framework applicable to the right to participate in decision-making.

KEY MESSAGES Respect the rights of Indigenous Peoples, especially the right to free, prior and informed consent, and to the mainenance, control and protection of cultural heritage, traditional knowledge and traditional cultural expressions and related intellectual property. Build Partnerships between Indigenous Peoples, States and relevant UN agencies that result in an approach to World Heritage Sites that respects and promotes the rights of Indigenous Peoples. Article 31 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. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Current Studies of Indigenous Specific Mechanisms Relevant to the Conceptual and Policy Framework Expert Mechanism: The Right of Indigenous Peoples to Participate in Decision-making with a Focus on Extractive Industries Special Rapporteur: Report on Extractive Industries Operating Within or Near Indigenous Territories and development of guidelines Permanent Forum: Analysis on the duty of the State to protect Indigenous Peoples affected by Transnational Corporations and other Business Entities NOTE: This is not exhaustive as there are many other important UN agencies and entities that carry out work in this area, such as the UNESCO Focal Point for Indigenous Peoples.

EMRIP’S Report on the Right to Participate with a Focus on Extractive Industries Introduction Mandate for the Report, Coordination with other Mechanisms and with the Working Group on Business and Human Rights International Legal and Policy Framework Law * Permanent sovereignty of Indigenous Peoples over Natural Resources and the UN Declaration * Sustainable development and environmental responsibility and rights * The Guiding Principles and how they relate to Indigenous Peoples and the right to participate in the context of extractive industries The studies on the right to participate have examined both general and specific sources of the right to participate (UDHR, UN Declaration, ILO 169…) All sources are grounded in the fundamental elements of the right to self-determination. The work that has been developed in the area of the right to participate with a focus on extractive industries, is in substance, very relevant to the context of protecting Indigenous Peoples’ rights in the context of World Heritage sites nomination, management and evaluation.

EMRIP’S Report on the Right to Participate with a Focus on Extractive Industries Policy Rationale Urgency and Importance of the Issues Procedural versus substantive rights Indigenous women and girls and the right to participate in decision-making in the context of extractive industries Current examples: partnerships 7

EMRIP’S Report on the Right to Participate with a Focus on Extractive Industries Advice No. 4 Background Law Policy Practice Advice for States on how to meet their obligations Practical Advice for Extractive Industries on how to meet the requirements to respect the rights of Indigenous Peoples Practical Advice for Indigenous Peoples on how to meet their responsibilities and protect their human rights 8

Free, prior and informed consent (FPIC) According to peoples’ own representative organizations/institutions. Iterative and negotiated, not hurried or “one-off” approach Without coercion or duress (“Free”) Before the initiation of activities/site designation (“Prior”) The right to say “yes” or “no” to proposed developments/world heritage site designation on peoples’ lands and territories. Consent which is determined in conformity with, or respect for, peoples’ cultures, customary systems and practices. While the discourse on the right to free, prior and informed consent has focused on development of lands, territories and resources, it is just as applicable to the area of World Heritage Site nominations and designations.

Working Group on Business and Human Rights Provides advice to the Human Rights Council (similar to the Expert Mechanism) Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie Guiding Principles on Business and Human Rights: Implementing the UN «Protect, Respect and Remedy Framework» International Standards applicable to all businesses and corporations that can be applied to Indigenous Peoples.

The Ruggie Guidelines These guidelines are structured on three main pillars: The state duty to protect related human rights abuses by third parties, including business enterprises, through appropriate policies, regulation and adjudication; The corporate responsibility to respect human rights, meaning businesses should act with due diligence to avoid infringement on the rights of others and to address adverse impacts with which they are associated; The need for greater access to remedy for victims of business-related human rights abuses (judicial and non-judicial)

5th Session Report of the Expert Mechanism’s Proposal on the World Heritage Committee Applying the Right to Participate to the Conceptual and Policy Framework of the World Heritage Convention: “Reiterates that UNESCO must enable and ensure effective representation and participation of indigenous peoples in decision-making related to the World Heritage Convention and that robust procedures and mechanisms should be established to ensure that indigenous peoples are adequately consulted and involved in the management and protection of World Heritage sites, and that their free, prior and informed consent is obtained when their territories are being nominated and inscribed as World Heritage sites.” Proposal 9, page 7

5th Session Report of the Expert Mechanism’s Proposal on the World Heritage Committee Continued “Welcomes World Heritage Committee decision 35 COM 12E (2011), in which the Committee encourages States to involve indigenous peoples in decision-making, monitoring and evaluation of the state of conservation of World Heritage sites and to respect the rights of indigenous peoples when nominating, managing and reporting on World Heritage sites in indigenous peoples’ territories.” Proposal 9

5th Session Report of the Expert Mechanism’s Proposal on the World Heritage Committee Continued “Encourages the World Heritage Committee to establish a process to elaborate, with the full and effective participation of indigenous peoples, changes to the current procedures and operational guidelines and other appropriate measures to ensure that the implementation of the World Heritage Convention is consistent with the United Nations Declaration on the Rights of Indigenous Peoples and that indigenous peoples can effectively participate in the World Heritage Convention’s decision-making processes.” Proposal 9

HAI HAI (THANK YOU) 15