Expert Mechanism on the Rights of Indigenous Peoples Briefing for the Human Rights Committee, 16 July 2012 Office of the United Nations High Commissioner for Human Rights

 Background to the Expert Mechanism  Mandate of the Expert Mechanism: HRC Resolution 6/36  Composition of the Expert Mechanism  Sessions of the Expert Mechanism  Expert Mechanism Study on Education  Expert Mechanism Study on Participation  Expert Mechanism Study on Cultures and Languages  Where to find further information Outline

 Working Group on Indigenous Populations (1982 – 2006)  Under the Sub-Commission on the Promotion and Protection of Human Rights  First draft of the Declaration on the Rights of Indigenous Peoples  Working Group on the Draft Declaration on the Rights of Indigenous Peoples (1995 – 2006)  Under the Commission on Human Rights  Finalised the text of the Declaration as submitted to the Commission on Human Rights/Human Rights Council 2006  Permanent Forum on Indigenous Issues (2000)  Special Rapporteur on the Rights of Indigenous Peoples (2001)  Human Rights Council adopted the Declaration in June 2006  Adoption of the Declaration on the Rights of Indigenous Peoples in the General Assembly (Sept 2007)  Human Rights Council established the Expert Mechanism on the Rights of Indigenous Peoples (December 2007) Background to the Expert Mechanism on the Rights of Indigenous Peoples

Mandate Resolution 6/36 1. Decides, in order to assist the Human Rights Council in the implementation of its mandate, to establish a subsidiary expert mechanism to provide the Council with thematic expertise on the rights of indigenous peoples in the manner and form requested by the Council:  Assistance for the implementation of the Council’s mandate  Advisory function  Human Rights Council requests manner and form

Mandate  (a) The thematic expertise will focus mainly on studies and research-based advice;  (b) The mechanism may suggest proposals to the Council for its consideration and approval, within the scope of its work as set out by the Council;  Expertise mainly through studies and research-based advice  Proposals – but must seek the approval of the Human Rights Council  Human Rights Council requests:  Education (2008): Res 9/7  Right to participate in decision making (2009 – 2010): Res 12/13  Cultures and languages (2011): Res 18/8

Reporting to the Council 2. Also decides that this mechanism shall report annually to the Council on its work;  Formal presentation at the 10 th (2008), 12 th (2009), 15 th (2010) and 18 th (2011) sessions of the Human Rights Council  New: interactive dialogue (18 th session), available live on the Human Rights Council’s webcast ( rc/)  Reports at the same time as the Special Rapporteur on the rights of indigenous peoples

Composition Human Rights Council Resolution 6/36 (2007)  3. Further decides that the expert mechanism shall consist of five independent experts  4. Strongly recommends that, in the selection and appointment process, the Council give due regard to experts of indigenous origin;  6. Also decides that the members of the expert mechanism shall serve for a three-year period and may be re-elected for one additional period ; Anastasia Chukhman (Russian Fed): 2013 Jannie Lasimbang (Malaysia): 2014 Wilton Littlechild (Canada): 2014 José Carlos Morales Morales (Costa Rica): 2013 Danfred Titus (South Africa): 2015

Coordination 5. Decides, in order for the expert mechanism to enhance cooperation and avoid duplicating the work of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people and the Permanent Forum, that it shall invite the Special Rapporteur and a member of the Permanent Forum to attend and contribute to its annual meeting;  Close coordination between indigenous mandates and respective secretariats  Cooperation includes:  attendance at respective sessions (eg EM and SR at the PFII and vice versa)  Annual coordination meetings  Declaration on the Rights of Indigenous Peoples is a common framework, under article 42 of the Declaration

 Expert Mechanism  Thematic advice to the Human Rights Council  Special Rapporteur on the rights of indigenous peoples  Examines obstacles to the protection of indigenous peoples’ rights, gathers information and communications, formulates recommendations and works with other mandates such as the Expert Mechanism  Conducts country visits, responds to communications and undertakes thematic studies  Permanent Forum on Indigenous Issues  Advises the Economic and Social Council, raises awareness and promotes integration and coordination of activities on indigenous issues within the UN system and prepares and disseminates information on indigenous issues Distinctions between the Indigenous Mandates

Annual sessions The Expert Mechanism meets annually  in Geneva  usually in July  for 5 days Indigenous peoples, states, non- state actors, academia, national human rights institutions and others attend

Participation in the Expert Mechanism

 Based on:  Research undertaken by experts, including an analysis of relevant jurisprudence from the UN human rights treaty bodies  Submissions during sessions of the Expert Mechanism and calls for contributions from states, indigenous peoples etc  Expert seminars  Contributions from:  States  Indigenous peoples – individuals and representatives of indigenous peoples  Academic institutions  National human rights institutions  Non-state actors Expert Mechanism studies

 Education is an important means for the enjoyment, maintenance and respect of indigenous cultures, languages, traditions and traditional knowledge  Education is an indispensible means of realising indigenous peoples’ right to self-determination  Indigenous education includes:  Traditional education or ways of learning and institutions  Integration of indigenous perspectives and language in mainstream education systems and institutions  Indigenous peoples have the right to establish and control their education systems and institutions Education Study

 Lessons learned:  Constitutional recognition of indigenous peoples and the adoption of related national laws and policies on education is considered a priority in the application of the right of indigenous peoples to education  The provision of resources and attaching a high priority to the education of indigenous peoples are of utmost importance Education Study

 Challenges and measures include:  Lack of control over education initiatives for indigenous children  Lack of consultation on the development and implementation of educational services provided to indigenous peoples  Limited consideration given to autonomy and participation of indigenous peoples in the delivery of educational services  The imposition of mainstream education on indigenous children Education Study

 The right of indigenous peoples to education includes the right to provide and receive education through their traditional methods of teaching and learning, and the right to integrate their own perspectives, cultures, beliefs, values and languages in mainstream education systems and institutions  Indigenous peoples, in exercising their right to self-determination, have the right to education autonomy  Indigenous peoples should be regarded as having prepaid present and future financial allocations from the State, including allocations to education, by sharing their lands, territories and resources with others Advice on the Rights of Indigenous Peoples to Education

 The principle of participation in decision making has a clear relationship with the right of indigenous peoples to self-determination, including the right to autonomy or self-government, and the State obligation to consult indigenous peoples in matters that may affect them, based on the principle of free, prior and informed consent.  Examination of the human rights framework on the right to participate in decision, including Human Rights Committee:  General Comments 23 (on article 27) and 25 (on participation in public affairs);  Marshall et al. (Mikmaq people) v. Canada; and  concluding observations that include references to article 1 ICCPR in the context of indigenous peoples’ issues;  noting the relationship between the right to participate and indigenous peoples’ right to culture Participation Study

 Self-determination means that the institutions of decision making should be devised to enable indigenous peoples to make decisions related to their internal and local affairs, and to participate collectively in external decision-making processes in accordance with relevant human rights standards Participation Study

 Free, prior and informed consent:  Consistent jurisprudence from treaties and from human rights treaty bodies cited, including Human Rights Committee  Internal decision-making processes of indigenous peoples:  Guided by traditional indigenous legal systems  Can include adjudication and dispute-resolution procedures  Pressures from influence of contemporary structures of decision- making Participation Study

 «good practices»:  guaranteed representation of indigenous peoples in Parliaments  institutions permitting direct indigenous participation in governance  consultation with indigenous peoples on matters that affect them  shared governance with state bodies  examples of consultation and consent seeking of indigenous peoples  participation in regional and international forums and processes  enhanced participation of indigenous peoples in national human rights institutions Participation Study

 Indigenous peoples’ right to participate in decision making is a substantive as well as a procedural right  Consultations with indigenous peoples need to allow for the full expression of indigenous peoples’ views, in a timely manner and based on their full understanding of the issues involved, so that they may be able to affect the outcome and consensus may be achieved  Consultations also need to be undertaken in good faith, mutual trust and transparency, allowing indigenous peoples sufficient time to engage their own decision-making processes and the objective should be to achieve agreement or consensus Advice No 2 on Participation in Decision Making

 The duty to consult applies whenever a measure or decision specifically affecting indigenous peoples is being considered (for example, affecting their lands or livelihood)  The duty also applies in situations where the State considers decisions or measures that potentially affect the wider society, but which affect indigenous peoples, and in particular in instances where decisions have a disproportionately significant effect on indigenous peoples  Indigenous peoples have the right to develop and maintain their own decision making institutions and authority parallel to their right to participate in external decision making processes that affect them Advice No 2 on Participation in Decision Making

 Consent required in matters of fundamental importance for indigenous peoples’ rights, survival, dignity and well-being  In assessing whether a matter is of importance to the indigenous peoples concerned, relevant factors include the perspective and priorities of the indigenous peoples concerned, the nature of the matter or proposed activity and its potential impact on the indigenous peoples concerned, taking into account, inter alia, the cumulative effects of previous encroachments or activities and the historical inequities faced by the indigenous peoples concerned Advice No 2 on Participation in Decision Making

 Recent Human Rights Committee jurisprudence:  similar approaches to consultation and free, prior and informed consent (eg in CO for Australia (2009); Sweden (2009); Mexico (2010); New Zealand (2010); El Salvador (2010); Poma Poma v Peru; Togo (2011) Consistent approaches to the Human Rights Committee

 study: cultures and languages (to be submitted to HRC 21 in September 2012)  Request to continue to build on previous studies, including on participation: EM focusing on indigenous peoples’ participation in extractive industry  Questionnaire seeking the views of States on best practices re: implementation strategies to attain the goals of the Declaration  Discuss the World Conference on Indigenous Peoples (2014) to contribute the exploration of the modalities of the meeting, including indigenous peoples’ participation at the Conference and its preparatory process Resolution 18/8 (Sept 2011)

 To be submitted to the HRC in September 2012  Draws on Human Rights Committee jurisprudence in relation to article 27 ICCPR and especially:  Lubicon Lake v Canada; Mahuika v New Zealand and Poma Poma v Peru.  that cultural rights involve positive duties  cultural rights can cover indigenous peoples’ use of their lands, territories and resources and their culturally significant activities  that cultural rights should be interpreted consistently with the right to self-determination in the context of indigenous peoples’ issues  that indigenous peoples’ participation is relevant in an assessment of whether economic activities contravene indigenous peoples’ cultural rights Languages and cultures study

 Consistent approaches to the interpretation of rights, for example the right to participate  Expert Mechanism studies provide detail on how cultural rights apply to situations facing indigenous peoples, relevant to monitoring of states’ compliance with the ICCPR, including in relation to individual communications Relationship to the Human Rights Committee

 Consistent messages from across the UN system, thus illustrating coordination (responding to issues associated with fragmentation)  Expert Mechanism’s Advice is based on  significant research, often collating the jurisprudence from all relevant human rights bodies, including from the regional human rights systems  is the subject of deliberations between states, indigenous peoples, civil society, national human rights institutions and academics, especially during its annual sessions « Added Value» of Expert Mechanism studies in the jurisprudence of the Human Rights Committee

 How might the Expert Mechanism assist the Human Rights Committee in its work? Questions?

 Expert Mechanism website  MRIPIndex.aspx MRIPIndex.aspx  OHCHR on indigenous peoples website  tm tm More information