Statement of the Special Rapporteur on the rights of indigenous peoples, James Anaya
Human Rights Council
18 September 2012
Ladies and gentlemen,
I have the honour to present today my fifth annual report to the Human Rights Council. I would like to start by thanking the numerous States, indigenous peoples, and others for the cooperation and support they have provided to me over the past year. Since last reporting to the Council I have continued to engage in activities under my mandate in four areas of work. These are promoting good practices; responding to cases of alleged human rights violations; country assessments; and thematic studies.
Promotion of good practices
With respect to the promotion of good practices, I have collaborated on an ongoing basis with various United Nations agencies, States, indigenous peoples and others to strengthen the protection of the rights of indigenous peoples at both the international and national levels, focusing especially on developing modalities and reforms to implement the Declaration on the rights of indigenous peoples. As many here are aware, last week marked the fifth anniversary of the adoption of the Declaration by the General Assembly. I would like to highlight today that much effort is still needed both within the United Nations system and at the State level to see the rights affirmed in the Declaration operationalized.
Cases of allegations of human rights violations
This need is especially evident in a second area of my work, which is responding to alleged violations of the rights of indigenous peoples in specific cases. On a daily basis I receive allegations of violations and often respond by communicating my concerns about the situations to the Governments involved. I have sought to follow up on the numerous communications, in many cases issuing detailed observations with recommendations. In some cases, I have conducted on-site visits. In March 2012, I travelled to Costa Rica and met with indigenous leaders and Government officials to follow up on my earlier examination of the situation of indigenous communities that could be affected by a hydroelectric project. I have also on occasion issued media or other public statements regarding situations of immediate concern in some countries. My report on the cases examined over the past year is in Addendum 3 to my annual report
In addition to reporting on specific cases in countries around the globe, I am pleased to present to the Council reports on the situations of indigenous peoples in Argentina and in the United States following visits to those countries. Just last month I also visited El Salvador and am in the process of drafting my report on the human rights conditions of indigenous peoples in that country. In addition, I will be starting a mission to Namibia later this week. I am grateful to each of these States for their excellent cooperation. I hope that positive responses to my outstanding visit requests to other countries will be forthcoming.
Mi informe sobre Argentina, que se encuentra en la adicion numero 2 a mi informe anual al Consejo, se basa en la información recopilada durante la visita del 27 de noviembre a 7 diciembre de 2011. Quisiera agradecer al Gobierno de Argentina por su invitación para visitar el país y por el apoyo que me brindó. También quisiera reconocer con gratitud a las distintas organizaciones y personas indígenas por el apoyo que brindaron durante la visita, y a los representantes de los pueblos indígenas que proporcionaron información escrita y oral acerca de sus situaciones.
En mi informe sobre Argentina, reconozco que el Gobierno ha dado pasos importantes para reconocer los derechos de los pueblos indígenas. Estos pasos incluyen la incorporación de disposiciones relativas a los pueblos indígenas en la Constitución de 1994, la adopción de legislación que establece un proceso de regularización de la tenencia de la tierra indígena, la ratificación del Convenio N º 169 de la Organización Internacional del Trabajo sobre pueblos indígenas y tribales, y el voto de la Argentina en la Asamblea General a favor de la Declaración de las Naciones Unidas sobre los derechos de los pueblos indígenas.
Sin embargo, como detallo en mi informe, persiste aún una brecha significativa entre las protecciones legales establecidas a favor de los derechos de los pueblos indígenas, y su verdadera implementación. El Gobierno debe priorizar y dedicar mayores esfuerzos para implementar los derechos humanos de los pueblos indígenas tanto a nivel federal como provincial. En particular, el Gobierno debe adoptar políticas públicas claras y desarrollar medidas legislativas y administrativas adicionales para promover el conocimiento y la acción con respecto a temas indígenas por parte de todos los poderes del Estado.
Las áreas particulares de preocupación que detallo en mi informe se refieren al reconocimiento y la protección de los derechos de los pueblos indígenas sobre sus tierras y recursos naturales, lo que incluye preocupaciones relacionadas con el programa de relevamiento territorial y las industrias extractivas y agrícolas; temas de acceso a la justicia, particularmente en lo que respecta a los desalojos y el procesamiento penal de actos relacionados con las reclamaciones no resueltas de los pueblos indígenas; así como las condiciones sociales y económicas de los pueblos indígenas, incluyendo en las áreas de educación, salud y desarrollo.
In my report on the situation of indigenous peoples in the United States, which is in Addendum 1 to my report to Council, I note that indigenous peoples in the United States – including American Indian, Alaska Native and Native Hawaiian peoples – constitute vibrant communities that have contributed greatly to the life of the country. At the same time, they face significant challenges that are related to widespread historical wrongs, including broken treaties and acts of oppression, and misguided government policies, that today manifest themselves in various indicators of disadvantage and impediments to the exercise of their individual and collective rights.
Significant federal legislation and programs have been developed over the last few decades, and especially in recent years, which constitute good practices that in significant measure respond to indigenous peoples’ concerns. I find, however, that existing federal programs need to be improved upon and their execution made more effective. In particular, new measures are needed to advance toward reconciliation with indigenous peoples and address persistent deep-seated problems related to historical wrongs, failed policies of the past, and continuing systemic barriers to the full realization of indigenous peoples’ rights.
As I highlight in my report, the United Nations Declaration on the Rights of Indigenous Peoples is an important impetus and guide for improving upon existing measures to address the concerns of indigenous peoples in the United States, and for developing new measures to advance toward reconciliation. I believe that it should be a benchmark for all relevant decision making by the federal executive, Congress, and the judiciary, as well as by the states of the United States.
My report on indigenous peoples in the United States was developed on the basis of research and information gathered, including during a visit to the country from 23 April to 4 May 2012. I would like to thank the United States Government, especially the Department of State, for the cooperation it provided for the mission. I would also like to express my deep gratitude to representatives of indigenous peoples, nongovernmental organizations and academic institutions, whose assistance in planning and carrying out this visit was indispensable.
I would now like to refer to my thematic studies, that is, my work examining recurring issues of concern to indigenous peoples worldwide. I have continued my focus on the issue of extractive industries affecting indigenous peoples, in addition to other issues. A recurring issue that has come to my attention in various contexts is that of violence against indigenous women and girls.
Violence against indigenous women and girls
In a seminar convened by the Permanent Forum on Indigenous Issues on this subject earlier this year, the participants stressed the need for a holistic approach to combating violence against indigenous women and girls that takes into account the interdependency and interconnectedness of their rights as women and children, and the rights of the indigenous peoples to which they belong. Thus, in my report I stress that implementation of the Declaration on the Rights of Indigenous Peoples, which is an instrument designed to remedy the continuing legacies of oppression of indigenous peoples, should be furthered concurrently with programmes that specifically target the problem of violence against indigenous women and girls. Such an approach will help to tackle the underlying structural pathologies affecting indigenous peoples that contribute to this problem. In particular, indigenous self-determination and cultural integrity must be enhanced, along with efforts that are designed to prevent and punish violence against indigenous women and girls.
Progress report on extractive industries study
With respect to my ongoing work on the issue of extractive industries, over the past year I have engaged in consultations with representatives of indigenous peoples, Governments and transnational corporations in several countries to obtain their perspectives on the various dimensions of the issue.
In my report, I point out that, as a point of departure for discussing concerns about extractive industries in relation to indigenous peoples, there is now a common, often narrow focus on principles of consultation and free, prior and informed consent. In my view this focus is impeding a full and adequate understanding of the human rights framework that is relevant in this context. A better approach starts with examination of the primary substantive rights of indigenous peoples that may be implicated in natural resource extraction. These include, in particular, rights to property over land and natural resources; rights to culture, religion, and health; and the right of indigenous peoples to set and pursue their own priorities for development, as part of their fundamental right to self-determination.
In my view, consultation and free, prior and informed consent are best conceptualized as safeguards against measures that may affect indigenous peoples’ rights. Other such safeguards include but are not limited to carrying out prior impact assessments, the establishment of mitigation measures, and benefit-sharing and compensation for any impacts, in accordance with international standards. And, as I highlight in the report, where the rights implicated are essential to the survival of indigenous peoples and foreseen impacts on the rights are significant, indigenous consent to those impacts is required, beyond simply being an objective of consultations.
Also in my report, I provide observations on the application in this context of the "protect, respect and remedy" framework, which is incorporated into the Guiding Principles on Business and Human Rights that have been endorsed by the Council.
Lastly, I observe that there is a fundamental problem with the current dominant model of natural resource extraction, a model in which the plans for the extractive project are developed by the corporation, with perhaps some involvement by the State, but with little or no involvement of the affected indigenous community or people, and in which the corporation is in control of the extractive operation and is the primary beneficiary of it. I am convinced that new and different models and business practices for natural resource extraction need to be identified, models that are more conducive to indigenous peoples’ self-determination and their right to pursue their own priorities for development.
In my future work on extractive industries, I plan to examine various models of natural resource extraction in which indigenous peoples have greater control and benefits than is typically the case under the standard model, drawing on a review of the experiences of indigenous peoples in various locations.
I would like to conclude by expressing my gratitude for the opportunity to continue my work in accordance with the mandate given to me by the Council and by reaffirming my strong commitment to the mandate. Although I am encouraged by positive developments in many places, I remain concerned about the reality of ongoing struggles and violations of indigenous peoples’ rights throughout the world. During the remainder of my mandate, I will continue to do my utmost to contribute to practical solutions to these pressing problems with full respect for the rights of indigenous peoples.