Expert Mechanism on the Rights of Indigenous Peoples: Briefing for Human Rights Committee

1. Office of the United Nations High Commissioner for Human Rights Expert Mechanism on the Rights of Indigenous PeoplesBriefing for the HumanRightsCommittee, 16 July 2012

2. Outline 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

3. Background to the Expert Mechanism on the Rights of Indigenous Peoples • 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)

4. MandateResolution 6/36 1. Decides, in order to assist the Human Rights Council in the implementation of its mandate, to establish a subsidiaryexpertmechanism to provide the Council withthematicexpertiseon the rights of indigenouspeoples in the manner and formrequestedby the Council: • Assistance for the implementation of the Council’s mandate • Advisory function • Human Rights Council requests manner and form

5. 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 decisionmaking (2009 – 2010): Res 12/13 • Cultures and languages (2011): Res 18/8

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

7. Composition Human Rights Council Resolution 6/36 (2007) • 3. Further decides that the expertmechanismshallconsist of fiveindependentexperts • 4. Stronglyrecommendsthat, in the selection and appointmentprocess, the Council givedueregard to experts of indigenousorigin; • 6. Also decides that the members of the expertmechanismshallservefor a three-yearperiod and may be re-electedforoneadditionalperiod; 2012 - 2015 Anastasia Chukhman (Russian Fed): 2013 JannieLasimbang (Malaysia): 2014 Wilton Littlechild (Canada): 2014 José Carlos Morales Morales (Costa Rica): 2013 Danfred Titus (South Africa): 2015

8. 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

9. Distinctions between the Indigenous Mandates • Expert Mechanism • Thematicadvice 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, formulatesrecommendations and workswithother mandates such as the Expert Mechanism • Conducts country visits, responds to communications and undertakesthematicstudies • Permanent Forum on Indigenous Issues • Advises the Economicand Social Council, raisesawareness and promotesintegration and coordination of activities on indigenous issues within the UN system and prepares and disseminates information on indigenous issues

10. Annual sessions The ExpertMechanismmeetsannually • in Geneva • usually in July • for 5 days Indigenouspeoples, states, non-stateactors, academia, national human rightsinstitutions and othersattend

11. Participation in theExpertMechanism

12. Expert Mechanism studies • 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

13. Education Study • 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

14. 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

15. Education Study • Challenges and measuresinclude: • 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 considerationgiven to autonomy and participation of indigenous peoples in the delivery of educational services • The imposition of mainstreameducation on indigenous children

16. Advice on the Rights of Indigenous Peoples to Education The right of indigenous peoples to educationincludes the right to provide and receiveeducationthroughtheirtraditionalmethods of teaching and learning, and the right to integratetheirown perspectives, cultures, beliefs, values and languages in mainstreameducationsystems and institutions Indigenous peoples, in exercisingtheir right to self-determination, have the right to educationautonomy Indigenous peoples shouldberegarded as havingprepaidpresent and future financial allocations from the State, including allocations to education, by sharing their lands, territories and resourceswithothers

17. Participation Study • The principle of participation in decisionmaking has a clearrelationshipwith 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 mattersthatmay affect them, based on the principle of free, prior and informed consent. • Examination of the humanrightsframework on the right to participate in decision, includingHumanRightsCommittee: • 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

18. 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

19. Participation Study • Free, prior and informed consent: • Consistent jurisprudence fromtreaties and fromhumanrightstreaty bodies cited, includingHumanRightsCommittee • Internaldecision-makingprocesses of indigenous peoples: • Guided by traditionalindigenouslegalsystems • Can include adjudication and dispute-resolutionprocedures • Pressures from influence of contemporary structures of decision-making

20. 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

21. Advice No 2 on Participation in Decision Making 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

22. 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

23. 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

24. Consistent approaches to the Human Rights Committee • 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)

25. Resolution 18/8 (Sept 2011) 2011-2012 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

26. Languages and cultures study • To besubmitted to the HRC in September 2012 • Draws on HumanRightsCommittee jurisprudence in relation to article 27 ICCPR and especially: • Lubicon Lakev Canada; Mahuika v New Zealand and Poma Poma v Peru. • that cultural rightsinvolve positive duties • cultural rightscancoverindigenous peoples’ use of their lands, territories and resources and theirculturallysignificantactivities • that cultural rightsshouldbeinterpretedconsistentlywith the right to self-determination in the context of indigenous peoples’ issues • thatindigenous peoples’ participation is relevant in an assessment of whethereconomicactivitiescontraveneindigenous peoples’ cultural rights

27. Relationship to the Human Rights Committee 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

28. «Added Value» of Expert Mechanism studies in the jurisprudence of 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

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

30. More information • Expert Mechanismwebsite • http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/EMRIPIndex.aspx • OHCHR on indigenous peoples website • http://www2.ohchr.org/english/issues/indigenous/index.htm