United Nations A/66/288
General Assembly Distr.: General
10 August 2011

Original: English
11-44942 (E) 250811
*1144942*
Sixty-sixth session
Item 66 of the provisional agenda*
Rights of indigenous peoples
Rights of indigenous peoples
Note by the Secretary-General
The Secretary-General has the honour to transmit to the members of the
General Assembly the report of the Special Rapporteur on the rights of indigenous
peoples, James Anaya, submitted in accordance with Human Rights Council
resolution 15/7.
* A/66/150.
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Report of the Special Rapporteur on the rights of
indigenous peoples
Summary
The present report provides an overview of the activities carried out by the
Special Rapporteur on the rights of indigenous peoples, James Anaya, during the first
three-year term of his mandate, which began in May 2008. In particular, the report
describes the Special Rapporteur’s efforts to coordinate with global and regional
mechanisms concerned with indigenous issues and outlines the work undertaken
within four interrelated spheres of activity: promoting good practices, country
reports, cases of alleged human rights violations and thematic studies.
The report includes summaries of the thematic studies that the Special
Rapporteur has included in the annual reports he has submitted to date to the Human
Rights Council. These includes studies on the United Nations Declaration on the
Rights of Indigenous Peoples; the duty of States to consult with and obtain the
consent of indigenous peoples before adopting measures that affect them; the
responsibility of corporations to respect the rights of indigenous peoples; and,
building on these themes, issues related to extractive industries operating in or near
indigenous peoples’ traditional territories.

Contents
Page
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. Coordination with other mechanisms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. Areas of work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Promoting good practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Country reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Specific cases of alleged human rights violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
D. Thematic studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
IV. Overview of key thematic issues examined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. United Nations Declaration on the Rights of Indigenous Peoples . . . . . . . . . . . . . . . . . . . 12
B. The duty to consult . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C. Corporate responsibility with respect to the human rights of indigenous peoples. . . . . . . 18
D. Extractive industries operating in or near industrial territories . . . . . . . . . . . . . . . . . . . . . . 20
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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I. Introduction
1. n In its resolution 2001/57, the Commission on Human Rights decided to
appoint, for a three-year period, a special rapporteur on the situation of human
rights and fundamental freedoms of indigenous people to gather, request, receive
and exchange information and communications from all relevant sources concerning
human rights violations against indigenous people themselves and their
communities and organizations and to formulate recommendations and proposals to
prevent and remedy such violations, among other functions.

2. In its resolution 6/12, the Human Rights Council decided to extend the
mandate of the Special Rapporteur on the situation of human rights and fundamental
freedoms of indigenous people, to develop a regular cooperative dialogue with
Governments, relevant United Nations bodies, specialized agencies and
programmes, as well as indigenous peoples, non-governmental organizations and
other regional or subregional international institutions; to examine ways and means
of overcoming existing obstacles to the full and effective protection of the human
rights and fundamental freedoms of indigenous people, in conformity with his
mandate, and to identify, exchange and promote best practices; and to promote the
United Nations Declaration on the Rights of Indigenous Peoples and international
instruments relevant to the advancement of the rights of indigenous peoples, where
appropriate.

3. By its resolution 15/14, the Council renewed the mandate, referring to the
Special Rapporteur as the Special Rapporteur on the rights of indigenous peoples,
not as the Special Rapporteur on the situation of human rights and fundamental
freedoms of indigenous people, under essentially the same terms.

4. The Human Rights Council appointed James Anaya of the United States of
America Special Rapporteur on the rights of indigenous peoples for an initial term
of three years beginning 1 May 2008. Mr. Anaya’s appointment to the mandate was
renewed for a second three-year term effective 1 May 2011.

5. The present report provides an overview of the Special Rapporteur’s work
during the first three years of his appointment. It describes his efforts to coordinate
with United Nations and other international mechanisms and agencies, and outlines
the following initiatives, carried out within four interrelated spheres of activity
relevant to the mandate: promoting good practices, reporting on country situations,
examining cases of alleged human rights violations and developing or contributing
to thematic studies. The report includes summaries of the major points that have
been made in the examination of key topics and that have been included in the
annual reports of the Special Rapporteur to the Human Rights Council.
II. Coordination with other mechanisms

6. As indicated in Council resolution 15/14, a fundamental aspect of the mandate
of the Special Rapporteur is his ongoing cooperation and partnership with other
United Nations mechanisms dedicated to the promotion and protection of the rights
of indigenous peoples, namely the Permanent Forum on Indigenous Issues and the
Expert Mechanism on the Rights of Indigenous Peoples.
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7. The Special Rapporteur has noted a significant level of confusion among
indigenous groups, non-governmental organizations and other stakeholders about
the respective roles and functions of the three mechanisms, as well as their place
within the institutional structure of the United Nations. He has therefore strived to
collaborate with the other mechanisms in a coherent and transparent way in order to
maximize understanding about the role and purpose of each mechanism.

8. The respective mandates of these three mechanisms, created at different times
and in response to different moments in the international movement to protect the
rights of indigenous peoples, are complementary but overlapping in certain respects.
The Special Rapporteur has consistently worked to strengthen and consolidate the
coordination processes between them to avoid unnecessary duplication and to
maximize opportunities and the effectiveness of each body. He believes that
continued education about the individual mandates and functions of these
mechanisms is essential.

9. The Special Rapporteur has, from the beginning of his mandate, participated in
regular coordination meetings with both the Permanent Forum and the Expert
Mechanism to promote coordination. In February 2009, he participated in a seminar
in Madrid with the members of the Expert Mechanism and four members of the
Permanent Forum, along with a group of experts from various regions, including the
former Special Rapporteur, Rodolfo Stavenhagen. The main objective of the
meeting was to promote an informal dialogue among the members of the three
mechanisms so that they could better coordinate their work, as well as their
activities with other United Nations agencies and bodies.

10. Since then, the Special Rapporteur has met annually with representatives of
the Permanent Forum and the Expert Mechanism to share work agendas, discuss the
strengths and limitations of their respective mandates and explore methods for
carrying out their work in the most effective way possible.

11. The Special Rapporteur has also worked closely with the Expert Mechanism
and contributed to its final study on indigenous peoples and the right to participate
in decision-making. He participated in two meetings: a regional consultation
organized by the Asia Indigenous Peoples Pact, which members of the Expert
Mechanism also attended, held in Thailand in January 2010; and an expert seminar
convened by the Office of the United Nations High Commissioner for Human
Rights (OHCHR), held in Geneva in March 2011. The study
(A/HCR/EMRIP/2011/2) was presented at the fourth session of the Expert
Mechanism, held in Geneva from 11 to 15 July 2011. The Special Rapporteur had
also provided comments for the previous study of the Expert Mechanism, on the
right of indigenous peoples to education.

12. Since assuming his mandate, the Special Rapporteur has attended each annual
session of the Permanent Forum and the Expert Mechanism and has participated in
the discussion of the substantive issues under consideration. During those sessions,
he developed the practice of holding parallel meetings with indigenous peoples and
organizations, which have provided an invaluable opportunity for representatives of
indigenous peoples and organizations from around the world to raise their specific
situations and concerns in a manner that complements the more general discussions
of indigenous issues by the Permanent Forum and Expert Mechanism. During the
sessions, the Special Rapporteur also met with representatives of various States and
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United Nations agencies to discuss opportunities for collaboration and specific cases
concerning indigenous peoples.
13. In addition to cooperating with the Expert Mechanism and the Permanent
Forum, the Special Rapporteur has welcomed opportunities to join efforts with a
range of United Nations, regional and specialized bodies on matters concerning
indigenous peoples. He has provided observations on initiatives of the United
Nations Development Programme (UNDP), OHCHR, the World Bank, the World
Intellectual Property Organization (WIPO) and the Pan American Health
Organization. This coordination is important, as the Special Rapporteur promotes
awareness of indigenous issues and programmatic action that is conducive to
mainstreaming those issues and to effectively implementing standards of indigenous
rights as affirmed in relevant international instruments.
14. The Special Rapporteur has continued to exchange information with the Inter-
American Commission on Human Rights on cases of alleged violations of the rights
of indigenous peoples in the Americas, in an attempt to ensure coordinated efforts
and avoid unnecessary duplication. He has also confirmed his willingness to
cooperate with the Working Group on Indigenous Populations of the African
Commission on Human and Peoples’ Rights in the future.
III. Areas of work
15. The Special Rapporteur has engaged in a range of activities to monitor the
human rights conditions of indigenous peoples worldwide and promote steps to
improve those conditions in line with relevant international standards, including the
United Nations Declaration on the Rights of Indigenous Peoples. He has tried to
develop work methods oriented towards building a constructive dialogue with
Governments, indigenous peoples, non-governmental organizations, relevant United
Nations agencies and others in order to address challenging issues and situations and
build on advances already made. The various activities carried out in this spirit can
be described, as already indicated, as falling within four, interrelated spheres of
activity: promoting good practices, country reports, cases of alleged human rights
violations and thematic studies.
A. Promoting good practices
16. The Special Rapporteur has worked to advance legal, administrative and
programmatic reforms at the national and international levels in accordance with the
Declaration and other relevant international instruments. Often, such reforms are
major, complex undertakings requiring strong commitment, both financial and
political, on the part of Governments and international entities, as well as close
cooperation with indigenous peoples.
1. Promoting good practices at the national level
17. During the course of his work, the Special Rapporteur has been asked to
provide assistance with constitutional and legislative reform initiatives aimed at
harmonizing national frameworks with relevant international standards.
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18. Shortly after assuming his mandate in May 2008, the Special Rapporteur was
asked by indigenous organizations and the President of the Constituent Assembly of
Ecuador, as part of the programme of technical assistance provided by UNDP in the
country, to provide technical assistance with the constitutional revision process. The
Special Rapporteur visited Ecuador and submitted a number of observations to the
Government in the light of relevant international norms (A/HRC/9/9/Add.1,
para. 502). Ecuador’s new constitution was approved by referendum in September
2008 with significant provisions affirming indigenous peoples’ collective rights.
19. The Special Rapporteur has continued to monitor the implementation by
Ecuador of those reforms and subsequent legislation and, in 2010, presented to the
Council at its fifteenth session his observations on progress made and challenges
remaining with regard to implementing the constitutional guarantees for indigenous
people in Ecuador (A/HRC/15/37/Add.7). Furthermore, he has provided comments
on various drafts of legislation currently under consideration by the National
Assembly of Ecuador to coordinate indigenous customary justice systems with the
national justice system, in accordance with related provisions of the Constitution.
20. Similarly, in April 2009, the Special Rapporteur submitted a report to the
Government of Chile outlining and analysing the international norms on the duty to
consult indigenous peoples in relation to the constitutional reform process in Chile
(A/HRC/12/34/Add.6, appendix A).
21. In July 2010, the Special Rapporteur provided an analysis of international
standards relevant to the development in Colombia of a law or regulation on the
duty to consult with indigenous peoples and Afro-Colombian communities on
matters affecting them. His input was part of an initiative launched by OHCHR at
the request of an advisory group on the matter of the Ministry of Interior and Justice
of Colombia.
22. Likewise, over the course of several weeks in February 2011 the Special
Rapporteur provided observations on the initiative of the Government of Guatemala
to regulate a procedure for consultation with indigenous peoples.
23. Additionally, at the request of the Government of Suriname and indigenous
and tribal peoples, the Special Rapporteur provided observations and
recommendations on a process to develop legislation to secure indigenous and tribal
peoples’ rights to lands and resources, in the light of binding judgments issued in
this connection by the Inter-American Court of Human Rights
(A/HRC/18/35/Add.7). The observations and recommendations were based in part
on information gathered during a visit to Suriname in March 2011.
24. In December 2008, the Special Rapporteur attended a ceremony in Awas
Tingni, Nicaragua, during which the Government handed over to the indigenous
community the long-awaited title to its ancestral lands, as required by a 2001
judgement of the Inter-American Court of Human Rights. He commended the
Government of Nicaragua for taking steps to implement the judgement, and has
continued discussions with the Government to encourage progress towards securing
the rights to land and resources of other indigenous communities in that country.
2. Promoting good practices by international institutions and authorities
25. The Special Rapporteur has sought to promote decisions, programmatic
reforms and initiatives by international actors, at both the global and regional levels,
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and to strengthen, mainstream and advance implementation of international
standards concerning the rights of indigenous peoples.
26. In July 2011, the Special Rapporteur testified as an expert witness before the
Inter-American Court of Human Rights in the case Sarayaku v. Ecuador, regarding
the principles of consultation and free prior and informed consent.
27. In May 2011, the Special Rapporteur gave the keynote speech at a session in
Geneva of the Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore of WIPO, which is in the process of
developing an international legal instrument on traditional knowledge, genetic
resources and traditional cultural expressions.
28. In February 2011, the Special Rapporteur provided extensive observations on
the draft guidelines of UNDP on consultation with indigenous peoples in the context
of activities to reduce emissions from deforestation and forest degradation. Also in
February 2011, he contributed to the development of a regional intercultural health
policy by the Pan American Health Organization during a special meeting convened
in Washington, D.C.
29. In January 2011, in Paris, he participated in the meeting of a working group of
State delegates to the Organization for Economic Cooperation and Development
(OECD), providing comments to focus attention on indigenous issues in the process
of updating the OECD Guidelines for Multinational Enterprises.
30. At various times during the past year, the Special Rapporteur has provided
comments to the International Finance Corporation of the World Bank Group during
the Corporation’s review of its performance standard No. 7, on indigenous peoples,
including by meeting with officials of the Corporation and providing written
observations on drafts of the performance standard.
31. In November 2010, the Special Rapporteur participated in a seminar in Geneva
on land and human rights hosted by OHCHR, at which he provided information on
and analysis of the particular human rights concerns of indigenous peoples in
relation to lands.
32. The Special Rapporteur participated in seminars on the United Nations
Declaration on the Rights of Indigenous Peoples organized by OHCHR in Peru, in
October 2008, in Nicaragua, in June 2009, and in Trinidad and Tobago, in December
2009.
33. The Special Rapporteur has been collaborating with UNDP to produce a
resource guide on indigenous peoples’ rights for UNDP staff and others working on
indigenous issues.
34. Additionally, the Special Rapporteur has cooperated with the World Bank. On
3 June 2008, he was the featured speaker at a seminar on “Advancing indigenous
rights and development in Latin America and the Caribbean”, held in Washington,
D.C., at which he focused on the role of the World Bank in relation to various
challenges and initiatives concerning indigenous peoples. The Special Rapporteur
continues to maintain contact with representatives of the World Bank to explore
ways of coordinating further with a view to advancing indigenous peoples’ rights
through the Bank’s programmes.
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3. Promoting support for the United Nations Declaration on the Rights of
Indigenous Peoples
35. Another important way in which good practices can be promoted among both
national and international entities is by advancing a policy of commitment to the
rights enshrined in the United Nations Declaration on the Rights of Indigenous
Peoples. To that end, the Special Rapporteur has actively encouraged support for the
Declaration by those States that did not vote in favour of its adoption by the General
Assembly in 2007. In recent years, he has welcomed the reversal of positions by
Australia, Canada, New Zealand and the United States, the four States that had cast
votes against the Declaration. He has been pleased to observe that Colombia and
Samoa, States that had abstained from the vote, have since declared their support for
the Declaration. The Special Rapporteur has devoted sections of his thematic reports
to further analysis of the Declaration and its implementation.
36. The Special Rapporteur has sought to promote awareness of and action in
accordance with the Declaration through a number of activities. In June 2011, he
testified at a hearing of the United States Senate Committee on Indian Affairs
entitled “Setting the standard: the domestic policy implication of the United Nations
Declaration on the Rights of Indigenous Peoples”. In April 2011, he gave the
keynote address at the biennial conference of the New South Wales Aboriginal Land
Council in Australia, at which the Land Council discussed the Declaration as a
benchmark for major aspects of its work. Additionally, he gave a presentation on the
Declaration to representatives of various United Nations agencies in a seminar
organized by UNDP in New York, on 20 May 2009, at which he emphasized the role
of United Nations agencies and programmes in implementing the Declaration.
4. Other measures to promote good practices
37. Participation in seminars or conferences involving indigenous peoples,
experts, Government representatives and other actors has been an important means
by which the Special Rapporteur has sought to promote good practices.
38. In March 2011, the Special Rapporteur gave the keynote address at an expert
workshop in Berlin convened by the Federal Ministry on Economic Cooperation and
Development of Germany, concerning German development cooperation in Africa
and Asia.
39. In May 2010, the Special Rapporteur participated in a seminar on
multiculturalism and the oil and gas industry in Latin America and the Caribbean in
Cartagena, Colombia, organized by the Regional Association of Oil, Gas and
Biofuels Sector Companies in Latin America and the Caribbean. The seminar
provided an opportunity for dialogue with representatives of oil and gas companies,
as well as with academics and members of civil society, on the obligations of private
companies to respect international standards regarding indigenous peoples’ rights.
40. The Special Rapporteur participated in a seminar on indigenous rights, held in
Jakarta on 16 and 17 March 2009, sponsored by the National Human Rights
Commission of Indonesia and the Indigenous Peoples’ Alliance of the Archipelago.
At the seminar, the Human Rights Commission and the Peoples’ Alliance announced
an agreement on a joint programme to address indigenous issues — a good example
of coordination between a State’s independent human rights commission and a
major indigenous organization.
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41. The Special Rapporteur also participated in a meeting of experts held in
October 2009 in Sitges, Spain, and sponsored by the non-governmental
organizations Kreddha and the United Nations Educational, Scientific and Cultural
Organization Centre of Catalonia, at which the participants analysed sources of
conflicts arising from extractive activities carried out by companies in indigenous
territories and possible ways of preventing and resolving such conflicts. The
discussions served as a valuable contribution to the report of the Special Rapporteur
on the situation of human rights and fundamental freedoms of indigenous people
submitted to the Human Rights Council at its fifteenth session (A/HRC/15/37).
42. The Special Rapporteur visited Australia to attend a meeting entitled “The
Sixtieth Anniversary of the Universal Declaration on Human Rights: The Situation
of Human Rights and Fundamental Freedoms of the Aboriginal and Torres Strait
Islander People of Australia”, organized by the Foundation for Aboriginal and
Islander Research Action and held in Canberra in December 2008. The Special
Rapporteur had the opportunity to meet informally with various governmental
representatives, marking the beginning of a constructive dialogue in preparation for
his official mission to Australia in August 2009.
43. In an innovative initiative by an indigenous government, the Navajo Nation in
the United States has established the Navajo Nation Human Rights Commission. In
December 2008, the Special Rapporteur attended a human rights orientation
organized by the Commission for members of the Navajo Nation Council and
engaged in a discussion with the Commission and Council members on ways to
advance the human rights of Navajo people through the use of international human
rights mechanisms.
44. In October 2008, the Special Rapporteur attended the sixty-fifth convention of
the National Congress of American Indians. He gave a presentation on the use of
international standards to strengthen the protections for the rights of indigenous
peoples in the United States. The National Congress is a coalition of over
250 indigenous nations in the United States that works to inform decisions of the
Government of the United States and Congress that affect indigenous peoples’
interests.
45. In October 2008, the Special Rapporteur, together with the Special Rapporteur
on violence against women, its causes and consequences, participated in a regional
consultation of non-governmental organizations on violence against indigenous
women in Asia and the Pacific. The consultation was organized by the Asia Pacific
Forum on Women, Law and Development and was held in New Delhi.
B. Country reports
46. Over the past three years, the Special Rapporteur has issued various reports on
the human rights situations of indigenous peoples in various countries. Those
reports include conclusions and recommendations aimed at strengthening good
practices, identifying areas of concern and improving the human rights conditions of
indigenous peoples in specific countries or regions. The reporting process typically
involves a visit to the country under review, including to the capital and selected
places of concern, during which the Special Rapporteur interacts with Government
representatives, indigenous communities from different regions and a cross-section
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of civil society working on issues of relevance to indigenous peoples. The visits take
place with the consent and cooperation of the respective Government.
47. The Special Rapporteur has conducted visits to and reported on Brazil
(A/HRC/12/34/Add.2); Nepal (A/HRC/12/34/Add.3); Botswana (A/HRC/15/37/Add.2);
Australia (A/HRC/15/37/Add.4); the Russian Federation (A/HRC/15/37/Add.5); the
Sápmi region (the traditional territory of the Sami people) in Norway, Sweden and
Finland (A/HRC/18/35/Add.2); the Congo (A/HRC/18/35/Add.5); and New
Caledonia (France) (A/HRC/18/35/Add.6). He has also conducted follow-up visits
to Chile (A/HRC/12/34/Add.6), Colombia (A/HRC/15/37.Add.3) and New Zealand
(A/HRC/18/35/Add.4) to evaluate the progress made in those countries in
implementing the recommendations made by the Special Rapporteur’s predecessor.
48. In 2011, the Special Rapporteur will visit Argentina and, early in 2012, the
United States. He has also received invitations from the Governments of Panama
and El Salvador to evaluate the situations of indigenous peoples in those countries,
and welcomes those invitations. The Special Rapporteur has outstanding requests to
visit Bangladesh, Cambodia, Malaysia, Indonesia and Papua New Guinea, which he
hopes will be considered favourably.
C. Specific cases of alleged human rights violations
49. Another principal area of the Special Rapporteur’s work involves responding,
on an ongoing basis, to allegations of human rights violations in specific cases.
Summaries of letters sent by the Special Rapporteur communicating his concerns
over particular situations and responses received from Governments, together with
the Special Rapporteur’s observations and recommendations, are included in his
communications to and from Governments (A/HRC/18/35/Add.1, A/HRC/15/37/Add.1
and A/HRC/12/26/Add.1).
50. The Special Rapporteur has received information about cases of alleged human
rights violations in countries on every continent and, in response to them, has sent
numerous communications to Governments about these situations. Complaints
received have related to common issues that affect indigenous peoples throughout
the world, including the denial of the rights of indigenous peoples to their lands,
territories and natural resources; violations of the right to consultation and to free,
prior and informed consent, especially with regard to natural resource extraction or
the eviction of indigenous communities; threats or violence against indigenous
individuals and communities, including human rights defenders; concerns about
constitutional or legislative reforms in indigenous subject matter; issues related to
the recognition of indigenous justice systems; and the situation of indigenous
peoples in isolation.
51. Given the limited resources available, it is impossible for the Special
Rapporteur to respond to every case that comes to his attention. However, he
frequently acts on detailed and credible information that presents a serious situation
falling within his mandate in which intervention has a reasonable chance of having a
positive impact, either by drawing needed attention to the situation or by prompting
Government authorities or other actors to take corrective action. Alternatively, he
may take action where the situation is representative of, or connected to, a broader
pattern of human rights violations against indigenous peoples. He has responded to
allegations of human rights violations from a wide range of regions and countries.
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52. The Special Rapporteur aims to engage actively with States, indigenous
peoples and others to closely monitor and evaluate situations, identify underlying
causes of immediate problems, promote specific action that builds on advances
already made and make recommendations that are practical, founded on available
knowledge and in accordance with relevant human rights standards.
53. Therefore, for some cases examined, the Special Rapporteur has developed
detailed observations and recommendations that he has communicated to
Governments, regarding the action which, in his view, States and, as appropriate,
other interested parties should take to address those situations, within the framework
of the relevant international standards. He will continue to engage with States about
these specific situations and hopes that the dialogue to date has been useful for the
Governments and indigenous peoples concerned.
54. Certain communications received by the Special Rapporteur contain
allegations of specific violations of human rights of indigenous peoples that warrant
deeper analysis. For these matters, he has carried out site visits to countries as part
of his examination of those cases. As a result of the visits, he has issued detailed
observations with analyses and recommendations, in the hope that they will be of
use to the Governments and indigenous peoples concerned in their efforts to address
the problems raised.
55. In that connection, in April 2011 the Special Rapporteur travelled to Costa
Rica to examine the situation of indigenous peoples affected by the El Diquís
hydroelectric project. The Special Rapporteur provided the Government and
indigenous stakeholders with his observations and recommendations on the situation
(A/HRC/18/35/Add.8).
56. Similarly, in June 2010, the Special Rapporteur visited Guatemala to discuss
the implementation of the principles of consultation with indigenous peoples in the
country, particularly in relation to extractive industries, with a special focus on the
situation of indigenous peoples affected by the Marlin mine in the municipalities of
San Miguel Ixtuhuacán and Sipacapa (A/HRC/18/35/Add.3).
57. In February 2009, the Special Rapporteur travelled to Panama to examine the
situation of the indigenous communities affected by the construction of a
hydroelectric project on the Changuinola River in Panama (A/HRC/12/34/Add.5). In
June 2009, he went to Peru immediately following the confrontations between
indigenous peoples and the police in Bagua, Peru, in order to examine first hand the
human rights issues (A/HRC/12/34/Add.8).
58. During his visit to Australia in August 2009, the Special Rapporteur followed
up on earlier communications concerning the effects on indigenous rights of the
Northern Territory Emergency Response of the Government of Australia. He
prepared a special report containing his observations on that matter, which was
annexed to his report on the situation of indigenous peoples in Australia
(A/HRC/15/37/Add.4, appendix B.)
59. The Special Rapporteur believes that his ability to intervene rapidly in
situations of crisis involving indigenous peoples, such as the situation of Bagua in
Peru, has proved to be an effective use of his mandate, allowing him to play a key
role in the resolution, mitigation or improvement of situations of crisis involving
indigenous peoples.
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60. On occasion, the Special Rapporteur has issued media or other public
statements in response to issues of immediate concern arising in specific countries.
He has issued public statements on the following issues: Government reactions to
protests by the Rapa Nui people on Easter Island (Chile); concerns surrounding a
hunger strike by Mapuche indigenous prisoners protesting charges brought against
them under an anti-terrorism law (Chile); protests by indigenous peoples against
legislation on mining (Panama); laws and policies regarding consultation with
indigenous peoples (Peru); and concerns over legislation adopted by the State of
Arizona (United States) giving the police the power to detain suspected illegal
immigrants and the effects of this legislation on indigenous peoples in the United
States/Mexico border region.
D. Thematic studies
61. During the first three years of his mandate, the Special Rapporteur sought to
identify common issues or matters of concern to indigenous peoples throughout the
world and to address those concerns with informed analysis and recommendations.
His analyses of thematic issues have built upon his examination of national
situations and cases, and have been further informed by his experiences in the
promotion of good practices. In each of his annual reports to the Human Rights
Council, he has examined key issues, including the following: the significance of
the United Nations Declaration on the Rights of Indigenous Peoples; the duty of
States to consult with and obtain the consent of indigenous peoples before adopting
measures that affect them; the responsibility of corporations to respect the rights of
indigenous peoples; and, most recently, and building on the previous themes, issues
related to extractive industries operating in or near indigenous peoples’ traditional
territories.
IV. Overview of key thematic issues examined1
A. United Nations Declaration on the Rights of Indigenous Peoples
1. Overview
62. During the last three decades, the demands of indigenous peoples across the
world have led to the gradual emergence of a common body of opinion on the rights
of these peoples based on long-standing principles of international human rights law
and policy. The emergence of this common understanding has further been reflected
in and supported by constitutional, legislative and institutional reforms at the
national level. The adoption by the General Assembly in 2007 of the United Nations
Declaration on the Rights of Indigenous Peoples is the most prominent
manifestation of this common body of opinion, encapsulating as it does a widely
shared understanding of the rights of indigenous peoples that has been building over
decades from a foundation of existing sources of international human rights law.
63. The Declaration’s preamble stresses the essentially remedial purpose of the
instrument. Far from affirming special rights per se, the Declaration aims at
__________________
1 This section summarizes the Special Rapporteur’s examination of the United Nations
Declaration on the Rights of Indigenous People in A/HRC/9/9 (paras. 18-43).
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repairing the ongoing consequences of the historical denial of the right to
self-determination and other basic human rights that are affirmed in international
instruments of general applicability. In this sense, the Declaration does not create
new or special rights separate from the fundamental human rights that are deemed of
universal application, but rather elaborates upon these fundamental rights in the
specific cultural, historical, social and economic circumstances of indigenous
peoples.
64. The Declaration affirms in its article 3 the right of indigenous peoples to self
determination in a way that is deemed compatible with the principle of territorial
integrity and political unity of States. On these grounds, the Declaration provides a
detailed list of rights that constitute “the minimum standards for the survival,
dignity and well-being of indigenous peoples of the world” (art. 43). The
Declaration reaffirms basic individual rights to equality and non-discrimination, life
and personal integrity and freedom, nationality and access to justice; and it calls for
special attention to specific rights and needs of indigenous elders, women, youth,
children and persons with disabilities.
65. At the same time, the Declaration affirms rights of a collective character in
relation to self-government and autonomous political, legal, social and cultural
institutions; cultural integrity, including cultural and spiritual objects, languages and
other cultural expressions; lands, territories and natural resources; social services
and development; treaties, agreements and other constructive arrangements; and
cross-border cooperation. The Declaration also reflects the common understanding
that indigenous peoples’ self-determination ordinarily involves not only the exercise
of autonomy but also a participatory engagement and interaction with the larger
societal structures in the countries in which indigenous peoples live. Hence the
Declaration recognizes indigenous peoples’ right to participate in the political,
economic, social and cultural life of the State and to be consulted in relation to
decisions affecting them, with the objective of obtaining their prior, free and
informed consent.
2. Normative and legal significance
66. On too many occasions in his work, the Special Rapporteur has come across
efforts by States and other actors to diminish the normative weight of the
Declaration by describing it as an instrument that is not legally binding. While this
point can be conceded, a solid understanding of the normative significance and legal
obligations related to the Declaration does not end there.
67. Whatever its precise legal significance, the Declaration has a significant
normative weight grounded in its high degree of legitimacy. This legitimacy is a
function of not only the fact that it has been formally endorsed by an overwhelming
majority of Member States (including by the four States that had voted against its
adoption, see para. 35 above) but also the fact that it is the product of years of
advocacy and struggle by indigenous peoples themselves. The Declaration is the
result of a cross-cultural dialogue that has taken place over decades and in which
indigenous peoples have played a leading role. The norms of the Declaration
substantially reflect indigenous peoples’ own aspirations, which after years of
deliberation have come to be accepted by the international community. The
Declaration’s wording, which has been endorsed by Members States, explicitly
manifests a commitment to the rights and principles embodied in the Declaration. It
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is simply a matter of good faith that States adhere to that expression of commitment
to the norms that indigenous peoples themselves have advanced.
68. Furthermore, even though the Declaration itself is not legally binding in the
same way that a treaty is, the Declaration reflects legal obligations that are related to
the human rights provisions of the Charter of the United Nations, various
multilateral human rights treaties and customary international law. The Declaration
builds upon the general human rights obligations of States and is grounded in
fundamental human rights principles such as non-discrimination, self-determination
and cultural integrity, which are incorporated into widely ratified human rights
treaties, as evident in the work of United Nations treaty bodies. In addition, core
principles of the Declaration can be seen to connect to a consistent pattern of
international and State practice, and hence, to that extent, they reflect customary
international law.
69. Additionally, the Declaration reflects the existing international consensus
regarding the individual and collective rights of indigenous peoples in a way that is
coherent with and expands upon the provisions of the Convention on Indigenous and
Tribal Peoples (Convention No. 169) of the International Labour Organization, as
well as with the interpretations of other human rights instruments by international
bodies and mechanisms. As the most authoritative expression of this consensus, the
Declaration provides a framework of action for the full protection and
implementation of these rights.
70. Thus, the significance of the Declaration is not to be diminished by assertions
of its technical status as a resolution that is not legally binding. In the view of the
Special Rapporteur, implementation of the Declaration should be regarded as a
political, moral and, yes, legal imperative.
3. Measures needed to implement the Declaration
71. On various occasions the Special Rapporteur has offered comments on
minimum steps that he considers must be taken in order to move forward with the
implementation of the Declaration, beyond its formal endorsement by States.
72. State officials and indigenous leaders should receive training on the
Declaration and the related international instruments and on practical measures to
implement the Declaration. In addition, seminars and conferences should be
organized at the national and local levels to bring together State officials and
indigenous leaders to develop strategies and initiatives for implementation,
including measures to address historical grievances, in the spirit of cooperation and
reconciliation that the Declaration represents.
73. States should engage in comprehensive reviews of their existing legislation
and administrative programmes to identify where they may be incompatible with the
Declaration. This would include a review of all laws and programmes touching upon
indigenous peoples’ rights and interests, including those related to natural resource
development, land, education and administration of justice. On the basis of such a
review, necessary legal and programmatic reforms should be developed and
implemented in consultation with indigenous peoples.
74. States should be committed to devoting significant human and financial
resources to take the measures required to implement the Declaration. Such
measures typically include the demarcation or return of indigenous lands, the
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development of culturally appropriate educational programmes, support for
indigenous self-governance institutions and the many other measures contemplated
by the Declaration.
75. The United Nations system and the international community should, as a
matter of the utmost priority, develop programmes to provide technical and financial
assistance to States and indigenous peoples to move forward with these and related
steps to implement the Declaration.. In some instances, existing United Nations and
international cooperation programmes may also have to be reformed so that they are
in line with the goals and objectives of the Declaration.
76. To some extent, these minimum steps to implement the Declaration are already
being taken by some States, in some cases with the backing of United Nations
agencies or international cooperation programmes. The goal is for these initiatives
to take root much more broadly than they have to date and for experiences to be
shared among all relevant stakeholders in order to strengthen these initiatives.
B. The duty to consult2
1. Normative grounds and general character
77. The duty of States to consult with indigenous peoples on decisions affecting
them finds prominent expression in the United Nations Declaration on the Rights of
Indigenous Peoples and is firmly rooted in international human rights law. That duty
is referenced throughout the Declaration in relation to particular concerns and is
affirmed as an overarching principle in article 19, which provides the following:
“States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their free,
prior and informed consent before adopting and implementing legislative or
administrative measures that may affect them.”
78. Like the Declaration, the Convention on Indigenous and Tribal Peoples
requires States to consult with indigenous peoples in good faith with the objective of
achieving their agreement or consent on those aspects of management schemes or
projects that affect them, and calls upon States to carry out consultations with
indigenous communities in connection with a variety of contexts. The duty of States
to effectively consult with indigenous peoples is also grounded in the core human
rights treaties of the United Nations, including the International Convention on the
Elimination of All Forms of Racial Discrimination and the International Covenant
on Civil and Political Rights. At the regional level, the duty to consult arises from
the obligations assumed by States under the American Convention on Human
Rights, as affirmed by the Inter-American Court of Human Rights in a series of
cases.
79. Most fundamentally, the duty to consult derives from the overarching right of
indigenous peoples to self-determination and from related principles of democracy
and popular sovereignty. It responds to the aspirations of indigenous peoples
worldwide to be in control of their own destinies under conditions of equality and to
participate effectively in decision-making processes that affect them. Consistent
__________________
2 This section summarizes the Special Rapporteur’s examination of the duty to consult in
A/HRC/12/34 (paras. 36-57 and 61-74).
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with such principles, the duty of States to consult with indigenous peoples in
decisions affecting them is aimed at reversing the historical pattern of excluding
indigenous people from decision-making processes in order to avoid imposing
important decisions on them in the future and to allow them to flourish as distinct
communities on lands to which their cultures remain attached.
80. As a general matter, decisions of the State should be made through democratic
processes in which the public’s interests are adequately represented. However, these
normal democratic and representative processes usually do not work adequately to
address the concerns that are particular to indigenous peoples, who are typically
marginalized from the political sphere. The duty of States to consult with indigenous
peoples and its various normative components are premised on widespread
acknowledgment, as manifested in the Declaration, of indigenous peoples’
distinctive characteristics and specific rights and on the need for special measures to
address their disadvantaged conditions.
2. The duty to consult and the objective of obtaining consent
81. The duty to consult is a procedural obligation that arises whenever indigenous
peoples’ substantive rights stand to be affected by a particular action. It should be
noted that the duty to consult is not limited to circumstances in which a proposed
measure will or may affect an already recognized right or legal entitlement at the
national level, for example, rights over traditional lands and territories.
82. The specific characteristics of the consultation procedure that is required by
the duty to consult will necessarily vary depending on the nature of the proposed
measure and the scope of its impact on indigenous peoples. For example,
constitutional or legislative reform measures that concern or affect all the
indigenous peoples of a country will require appropriate consultation and
representative mechanisms that will in some way be open to and reach all
indigenous peoples. By contrast, measures that affect particular indigenous peoples
or communities, such as initiatives for extracting natural resources in their
territories, will require consultation procedures focused on the interests of and
engagement with the affected groups.
83. The character of the consultation procedure and its object are also shaped by
the nature of the right or interest at stake for the indigenous peoples concerned and
the anticipated impact of the proposed measure. Necessarily, the strength of the
objective of achieving consent varies according to the circumstances, the indigenous
peoples’ rights and the interests involved. A significant, direct impact on indigenous
peoples’ lives establishes a strong presumption that the proposed measure should not
go forward without indigenous peoples’ consent. In certain contexts, that
presumption may harden into a prohibition of the measure or project in the absence
of indigenous consent.
84. The Declaration identifies two situations in which it is necessary to obtain the
consent of the indigenous peoples concerned prior to moving forward with the
proposed initiative: situations involving the removal of an indigenous group from its
traditional lands (art. 10) and situations involving the storage of hazardous materials
in indigenous peoples’ lands (art. 29). The Special Rapporteur would add situations
involving the establishment of natural resource extraction projects within
indigenous peoples’ lands and other situations in which projects stand to have a
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significant social or cultural impact on the lives of the indigenous peoples
concerned.
85. Still, in all cases in which indigenous peoples’ particular interests are affected
by a proposed measure, obtaining their consent should, to some degree, be an
objective of the consultation. The principles of good faith imply an effort to build
dialogue in which both States and indigenous peoples are to work towards
consensus and try in earnest to arrive at a mutually satisfactory agreement. All
parties should be willing to listen and compromise on their positions and defend
their legitimate interests and arrive at agreements that are binding on all.
86. Nonetheless, affected indigenous peoples could be justified in withholding
their consent in relation to a proposed initiative, and the proposed initiative should
indeed not move forward without such consent, if the State has not demonstrated
that the rights of affected indigenous peoples will be adequately protected under the
proposed project or if the State has not adopted adequate measures to mitigate any
adverse impacts of the proposed project.
3. Elements of confidence-building conducive to consensus
87. A good faith effort towards consensual decision-making requires that States
endeavour to create a climate of confidence with indigenous peoples that allows for
a productive dialogue. This is particularly important in relation to indigenous
peoples given their historic exclusion from decision-making processes and
consequent lack of trust in State institutions. Furthermore, indigenous peoples are
typically disadvantaged in terms of political influence, financial resources, access to
information and relevant education in comparison to State institutions or private
parties, such as companies, that are their counterparts in the consultations.
88. In order to achieve a climate of confidence and mutual respect for the
consultations, the consultation procedure itself should be the product of consensus.
The Special Rapporteur has observed that, in many instances, consultation
procedures are not effective and do not enjoy the confidence of indigenous peoples
because the affected indigenous peoples were not adequately included in the
discussions leading to the design and implementation of the consultation
procedures. These discussions should be initiated at the earliest stages of the design
of the proposed initiative and certainly, in the case of natural resource extraction
projects, before the State has entered into any agreements with third parties, such as
funding institutions or companies, in relation to the proposed project. Additionally,
States must duly address the imbalance of power by ensuring arrangements by
which indigenous peoples have the financial, technical and other assistance they
need, and they must do so without using such assistance to leverage or influence
indigenous positions in the consultations.
89. The building of confidence and the possibility of genuine consensus also
depends on a consultation procedure in which indigenous peoples’ own institutions
of representation and decision-making are fully respected. Indigenous peoples may
also need to develop or revise their own institutions, through their own decisionmaking
procedures, in order to set up representative structures to facilitate the
consultation processes. The Special Rapporteur has noted that the failure of
indigenous groups to clarify their representative organization structures can confuse
and slow down the consultation process.
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90. In cases involving natural resource exploitation or development projects
affecting indigenous lands, in order for the indigenous peoples concerned to make
free and informed decisions about the project under consideration, it is necessary
that they are provided with full and objective information about all aspects of the
project that will affect them, including the impact of the project on their lives and
environment. In this connection, it is essential for the State to carry out, with the
participation of the indigenous groups concerned, environmental and social impact
studies so that the full expected consequences of the project can be known.
91. Furthermore, a consensus-driven consultation process in such contexts should
not only address measures to mitigate or compensate for adverse impacts of the
project, but also explore and arrive at means of equitable benefit-sharing in a spirit
of true partnership.
C. Corporate responsibility with respect to the human rights of
indigenous peoples3
92. The international community has reached a certain level of consensus that
business enterprises have a responsibility to respect human rights. This consensus is
reflected in the many regulatory and self-regulatory frameworks governing
corporate responsibility that have appeared in recent decades, at both the
international and national levels. The guiding principles on business and human
rights (A/HRC/17/31) of the Special Representative were endorsed by the Human
Rights Council at its seventeenth session (Council resolution 17/4). Beyond the
question of their legal status, the various existing instruments and mechanisms on
corporate responsibility clearly reflect the existence of social expectations with
regard to corporate responsibility and the need to exercise it in relation to human
rights.
93. A central pillar of this normative framework is that companies have a general
duty to respect international human rights standards within the context of the due
diligence that must govern their activities. Due diligence is not limited to respect for
the national regulations of States in which companies operate, which are inadequate
in many cases, but should be governed by the international standards that are
binding on those States and on the international community as a whole. Due
diligence also means that companies must not contribute to States’ failure to meet
their international obligations in relation to indigenous rights, nor should they
endeavour to replace the role of States in the fulfilment of those obligations. The
Special Rapporteur considers the following to be necessary elements of the due
diligence of companies whose activities affect indigenous peoples.
1. Recognition of indigenous peoples
94. One of the fundamental difficulties facing companies that operate in
indigenous territories, or whose operations affect those territories, is the absence of
formal recognition of indigenous peoples by the State in which they live, or
recognition limited solely to certain groups. Nevertheless, a generally accepted
principle of international human rights law holds that the existence of distinct
__________________
3 This section summarizes the Special Rapporteur’s discussion of corporate responsibility in
A/HRC/15/37 (paras. 26-91).
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ethnic, linguistic or religious groups, including indigenous peoples, can be
established by objective criteria and cannot depend on a unilateral decision by a
State.
95. Businesses cannot use limited recognition, or absence of explicit recognition,
of indigenous peoples in the countries in which they operate as an excuse not to
apply the minimum international standards applicable to indigenous peoples,
including in cases where States are opposed to the application of such standards.
Due diligence therefore requires that companies identify in advance the existence of
indigenous peoples potentially affected by their activities and how they might be
affected by such activities.
2. Rights to land, territories and natural resources
96. A second feature of the due diligence incumbent on companies whose
activities have a potential impact on indigenous peoples is the identification of
indigenous ownership or possession and use of land, territories and natural
resources, a question of vital importance to the effective enjoyment of human rights
by indigenous peoples. The lack of official recognition of land or resource rights by
the State does not constitute adequate grounds for a company’s failure to respect
indigenous peoples’ rights to land in accordance with international standards. Due
diligence therefore requires that companies conduct an independent assessment of
the rights to which indigenous people may lay claim in accordance with the criteria
laid down in international instruments.
97. Companies should bring to bear an intercultural understanding that goes far
beyond mere legal considerations. International standards have highlighted the
special relationship existing between indigenous peoples and their traditional
territories, which form the basis of their distinct identities and cultures. Companies
must understand that, independent of the rights over their lands or resources to
which they may lay claim under national law, indigenous peoples have maintained
and continue to maintain ties to their traditional territories. Moreover, these ties are
collective, and therefore go far beyond the individual rights of the members of these
groups.
98. Companies should also put in place special guarantees of compensation for the
removal of indigenous communities and peoples from their lands, including with
regard to projects that involve the acquisition of indigenous lands held under
individual titles. In such cases, international standards require that alternatives that
limit or avoid such relocation be sought and that compensation in the form of other
land be provided as a matter of priority.
3. The State’s duty to consult and related corporate responsibilities
99. The principle of due diligence also requires that companies recognize the duty
of States to consult indigenous peoples (and, in some cases, to obtain their consent)
prior to the adoption of measures that may affect them directly and, in particular, in
relation to projects that affect their traditional territories. Companies must not
attempt to replace States in situations where international standards require States to
bear direct responsibility for holding consultations; indeed, they must promote the
full assumption by States of such responsibility. Furthermore, companies would fall
short of their due diligence with respect to human rights if they agreed to proceed
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with specific projects for which the State has failed to carry out an adequate
consultation with indigenous peoples.
100. Without prejudice to the principle that States bear the main responsibility to
consult, companies must respect the right of indigenous peoples to participate in
decisions affecting them by ensuring adequate mechanisms for consultation and
dialogue. Here, the purpose of consultations with indigenous peoples should be to
seek consensus on key aspects such as identification of the potentially negative
impact of the activities, measures to mitigate and compensate for such impact, and
mechanisms for sharing the benefits derived from the activities.
4. Impact studies and compensation measures
101. Impact studies and the definition of appropriate measures to compensate for
any negative impact identified are, by definition, related to the consultation process.
In recognition of indigenous peoples’ right to the conservation and protection of
their lands and environments, international standards and practice now require that
social and environmental impact studies be conducted as a specific guarantee for the
protection of indigenous rights, in particular with regard to projects involving
investment in or the development, exploration or extraction of natural resources
likely to affect those rights.
5. Benefit-sharing
102. Aside from being entitled to compensation for damages or mitigation measures
for negative impacts, indigenous peoples have the right to share in the benefits
arising from activities taking place on their traditional territories, especially in
relation to natural resource development. Companies are bound by their duty to
respect indigenous rights to establish mechanisms that ensure that indigenous
peoples share in the benefits generated by the activities in question. Benefit-sharing
should be regarded as a means of complying with a right, not as a charitable award
or favour granted by the company in order to secure social support for the project or
minimize potential conflicts. Consideration should be given to the development of
benefit-sharing mechanisms that genuinely strengthen the capacity of indigenous
peoples to establish and pursue their own development priorities and that help
indigenous peoples to make their own decision-making mechanisms and institutions
more effective.
D. Extractive industries operating in or near indigenous territories4
103. The impact that extractive industries have on indigenous peoples is a subject
of particular concern to the Special Rapporteur. In several country-specific and
special reports, and in his review of particular cases, he has examined various
situations in which extractive industry activities generate effects that infringe upon
indigenous peoples’ rights. The Special Rapporteur aims to contribute to efforts to
clarify and resolve the problems arising from the activities of extractive industries in
relation to indigenous peoples. In 2011 the Special Rapporteur disseminated a
questionnaire on natural resource extraction and development projects in or near
__________________
4 This section summarizes the report of the Special Rapporteur’s discussion of extractive
industries in A/HRC/18/35.
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indigenous territories to collect and understand views, concerns and
recommendations on the issue.
1. Preliminary assessment of the responses to the questionnaire
104. The views communicated by indigenous peoples, Governments, businesses and
other relevant stakeholders concerning the development of projects for extracting
natural resources and energy-related projects in indigenous territories reveal that,
despite a growing awareness of the need to respect the rights of indigenous peoples,
many problems still remain. The responses of indigenous peoples’ organizations and
representatives, Governments and corporations reflect a clear understanding of the
negative, even catastrophic, impact on the economic, social and cultural rights of
indigenous peoples caused by irresponsible or negligent projects that have been or
are being implemented in indigenous territories without proper guarantees or the
involvement of the peoples concerned.
105. In addition, while many Governments are committed to and have demonstrated
an awareness of the need to protect the rights of indigenous peoples, the responses
to the questionnaire received by the Special Rapporteur from States, coupled with
those received from other sources, also reflect a lack of consensus with regard to the
extent of a State’s duties concerning resource extraction and development projects
and the means of ensuring such protection. In several responses, particularly those
received from businesses, it was pointed out that Governments tend to distance
themselves from the implementation of the outcomes of consultation procedures and
other measures to safeguard the rights of indigenous peoples in the context of
extractive operations and to act as mere regulators. The fact that States tended to
delegate their protective role to business enterprises was repeatedly pointed out as a
matter of concern, particularly in cases in which the State’s regulatory frameworks
regarding indigenous rights, including in relation to the protection of lands and
resources, consultation and benefit-sharing, are insufficient or do not exist.
106. Another significant area that elicited divergent responses concerned the
balance of costs and benefits of extractive development projects. Although
responders were aware of the negative impact that extractive activities had had on
the lives of indigenous peoples in the past, they expressed widely divergent
perspectives about the incidence and value of actual or potential benefits from
extractive industries, especially with regard to the future. In their responses to the
Special Rapporteur’s questionnaire, many Governments underscored the key
importance of such activities for their economies. Many businesses shared the view
that indigenous peoples could benefit from the activities of extractive industries.
107. For their part, indigenous peoples expressed considerable scepticism and, in
many cases, outright rejection of the possibility of benefiting from extractive or
development projects in their traditional territories. The vast majority of indigenous
peoples, many of whom had direct experience of specific projects affecting their
territories and communities, emphasized in their responses a perception of
disenfranchisement, the impression that States and businesses were ignorant of the
rights and concerns of indigenous peoples and constant insecurity in terms of their
livelihoods in the face of encroaching extractive activities. These perceptions have
led indigenous peoples to see no positive impact from these operations, which are
seen more as a top-down imposition of decisions taken in collusion by the State and
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corporations to protect their own interests than the result of negotiated decisions
with their communities.
2. Proposed future plan of work of the Special Rapporteur
108. In the view of the Special Rapporteur, the lack of understanding of key issues
among all actors concerned is a major barrier to the effective protection and
realization of indigenous peoples’ rights in the context of extractive development
projects. That, coupled with the existence of numerous grey conceptual and legal
areas, has invariably proved to be a source of social conflict. Comparative
experiences provide ample examples of the eruption and escalation of such conflicts
and the ensuing radicalization of positions. Where social conflicts erupt in
connection with extractive or development plans in indigenous territories,
everybody loses.
109. The responses to the Special Rapporteur’s questionnaire demonstrate the need
for change in the currents state of affairs if indigenous rights standards are to have a
meaningful effect on State and corporate policies and action as they relate to
indigenous peoples. An initial step towards such change would be the establishment
of a common understanding among indigenous peoples, governmental actors,
businesses enterprises and others. The Special Rapporteur is conscious of the
complexities inherent in any effort to harmonize the various interests involved, as
well as of the difficulties of bridging the contrasting viewpoints that currently exist.
110. However, the Special Rapporteur is persuaded of the need to reach a common
understanding of the content and scope of the rights of indigenous peoples and of
the implications of those rights for the future desirability or viability of extractive
industry activities in or near indigenous territories, the nature of the responsibility
of States to protect indigenous peoples’ rights in this context, the actual or potential
impact of extractive industries (both positive and negative) and related matters.
Without such understanding, the application of indigenous rights standards will
continue to be contested, indigenous peoples will continue to be vulnerable to
serious abuses of their individual and collective human rights and extractive
activities that affect indigenous peoples will continue to face serious social and
economic problems.
111. The Special Rapporteur is committed, during the second term of his mandate,
to working in coordination with other mechanisms, in particular the Expert
Mechanism on the Rights of Indigenous Peoples of the Human Rights Council, to
develop concrete and practical recommendations, elaborating on the implications of
existing human rights standards, to help States, businesses and indigenous peoples
navigate the difficult issues that arise when extractive industries operate in or near
indigenous territories.
V. Conclusion
112. The Special Rapporteur reaffirms his strong commitment to the mandate
he holds, acknowledges with humility the responsibility it represents and
thanks all those who have supported and continue to support him in this role.
In particular, he gratefully acknowledges the trust that has been conferred
upon him by the Human Rights Council and thanks OHCHR and its staff for
their committed assistance. He also thanks the staff and affiliated researchers
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of the Support Project for the Special Rapporteur on the Rights of Indigenous
Peoples, which is part of the Indigenous Peoples Law and Policy Program at the
University of Arizona, United States. Finally, he thanks the many indigenous
peoples, Governments, United Nations bodies and agencies, non-governmental
organizations and others that have cooperated with him over the past three
years to implement his mandate.
113. The Special Rapporteur is pleased to provide the General Assembly with
the present report and looks forward to holding a dialogue with States about
his work. Although he is encouraged by the positive developments that have
taken place in many places, he remains concerned about the ongoing struggles
for and violations of indigenous peoples’ rights throughout the world. During
the second term of his mandate, he will make the development of concrete
measures to tackle these pressing problems a top priority by identifying good
practices and workable models and building on advances already made.
Through this work, he hopes to assist in the multifaceted efforts under way to
achieve the future envisioned by the Assembly when it adopted the United
Nations Declaration on the Rights of Indigenous Peoples in 2007, a future in
which indigenous peoples’ distinct identities and cultures are fully valued and
in which they have the opportunity to control their own destinies, under
conditions of equality, within the broader societies in which they live.