By ICTMN Staff, http://indiancountrytodaymedianetwork.com/2011/05/first-nations-to-un-fo...

30 May 2011

Canada and the U.S. may have signed on with the United Nations Declaration on the Rights of Indigenous Peoples back in November and December, respectively. But in at least two areas—genetic resources and mining—both countries are trying to wiggle out of the clause requiring “prior and informed consent” from indigenous peoples when it comes to activities on their land and person.

In a working-group session for the Commission on Sustainable Development just before the Forum began, four nations—Canada, Australia, New Zealand and the U.S.—asked that the words “free, prior and informed consent” (FPIC) regarding indigenous and local communities be deleted when it came to mining, according to session notes distributed by the Earth Negotiations Bulletin, a website that tracks information on environment and development negotiations.

Mohawk Nation representative Kenneth Deer noted as much in his May 16 address to the Tenth Session of the United Nations Permanent Forum on Indigenous Issues and spoke of the attempted undermining of the agreement in other arenas too. Speaking on behalf of Canada’s indigenous groups, Deer, who hails from the Mohawk Nation at Kahnawà:ke, expressed concern about Canada’s interpretation of the “C” in FPIC as “consultation” rather than “consent.”

FPIC shows up in four articles of the U.N. Declaration, which also says that any entity violating that right must provide redress, he noted.

“The right of FPIC has far-ranging significance for indigenous peoples, especially in the context of human rights and climate change,” he said in his statement on behalf of Canada’s First Nations organizations, as well as Amnesty International and other groups. “These issues are generally key considerations, particularly where large-scale developments are concerned.”

Other international and U.S. bodies besides the Declaration refer to consent rather than consultation, he said. For instance the U.N. Committee on the Elimination of Racial Discrimination (CERD) stipulates that “no decisions directly relating to [indigenous] rights and interests are taken without their informed consent,” he noted.

“Our organizations are deeply concerned by the continued opposition to FPIC by some states,” Deer said. “There appear to be increasing efforts to undermine or roll back this vital human rights standard.”

For instance the U.S., even back when it endorsed the Declaration, mentioned “meaningful consultation” with tribal leaders but not necessarily agreement, Deer said. Under that interpretation, governments and corporations could just tell the indigenous communities what they were doing and continue doing it.

“This is contrary to the very purpose of FIPC,” Deer said.

He called on the Permanent Forum on Indigenous Issues PFII to “adopt a standardized interpretation of FPIC” that’s “consistent with human-rights standards”; address unequal bargaining power between state and third-party developers and indigenous peoples; urge states to uphold their international obligations and to “fully respect FPIC, in regard to all customary rights of Indigenous peoples to genetic resources without discrimination. Provisions in the Nagoya Protocol that could serve to dispossess Indigenous peoples of such resources lack validity and require urgent redress.”

Lastly, Deer said, states must be urged to adopt interim measures to guard indigenous rights, including FPIC.

“Too often, such rights are violated while Indigenous peoples are engaging in their own decision-making process and in negotiations on the development project being proposed,” Deer concluded.

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FPIC: The ‘C’ stands for ‘Consent’

Joint Statement of: Assembly of First Nations, Chiefs of Ontario, Grand Council of the Crees (Eeyou Istchee), First Nations Summit, Haudenosaunee of Kanehsatà:ke, Innu Council of Nitassinan, Indigenous World Association, International Organization of Indigenous Resource Development (IOIRD), Louis Bull Cree Nation, Montana Cree Nation, National Association of Friendship Centres, Native Women’s Association of Canada, Samson Cree Nation, Union of BC Indian Chiefs, Amnesty International, First Peoples Human Rights Coalition, Canadian Friends Service Committee (Quakers), Amnistie Internationale, Hawai’i Institute for Human Rights, KAIROS: Canadian Ecumenical Justice Initiatives

Permanent Forum on Indigenous Issues
Tenth session
New York, 16-27 May 2011
Agenda Item 3©: Free, prior and informed consent

Speaker: Kenneth Deer (The joint submission below was delivered to the Permanent Forum on Indigenous Issues by Kenneth Deer, 17 May 2011).

Free, prior and informed consent (FPIC) is clearly established as an international human rights norm. The right of Indigenous peoples to grant or withhold approval for actions affecting their rights is an integral element of the right of self-determination. Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) reflects the right of self-determination in common article 1 of the two human rights Covenants.

Free, prior and informed consent is also an indispensable safeguard for other rights of Indigenous peoples. Such rights are routinely violated when Indigenous peoples are excluded from or marginalized in the decision making process.

The right of FPIC has been repeatedly applied by United Nations treaty bodies and by regional human rights commissions and courts, so as to fulfill state obligations under international law. In its March 2011 report, the Human Rights Committee urged Togo to take measures so as to “ensure that Indigenous peoples could effectively exercise their right to free, prior and informed consent” [unofficial translation].

General Recommendation XXIII of the UN Committee on the Elimination of Racial Discrimination (CERD) calls on state parties to ensure that, in regard to members of Indigenous peoples, ‘no decisions directly relating to their rights and interests are taken without their informed consent’.

FPIC is included in four articles of the UN Declaration, (arts. 11.2, 19, 28, 32.2). The Declaration also affirms that violation of the right of free, prior and consent requires effective redress (arts. 11.2, 28.1 and 32.3).

The right of FPIC has far-ranging significance for Indigenous peoples, especially in the context of human rights and climate change. These issues are generally key considerations, particularly where large-scale developments are concerned.

Need to safeguard FPIC

Our organizations are deeply concerned by the continued opposition to FPIC by some states. There appear to be increasing efforts to undermine or roll back this vital human rights standard.

At the time of its endorsement of the UN Declaration in December 2010, the United States indicated that FPIC calls for ‘a process of meaningful consultation with tribal leaders, but not necessarily … agreement …, before the actions addressed in those consultations are taken.’ In May 2011, at the Commission on Sustainable Development’s Working Group on Mining, Canada, Australia, New Zealand and the United States asked for deletion of ‘free, prior and informed consent’ regarding indigenous and local communities.

In Canada, where many of our organizations are from, a number of large banks have recently trumpeted their adoption of FPIC, when what they really mean is free, prior and informed consultation. This raises serious concerns that momentum toward implementation of free, prior and informed consent may be lost or diverted by the misleading use of the inadequate standard of free, prior and informed consultation.

Replacing the established standard of consent with the lesser standard of consultation would mean that at the conclusion of such a process taking place, governments or corporations would continue to be free to act in their own interests and the interests of other powerful sectors of society – while unilaterally and arbitrarily ignoring the decision taken by Indigenous peoples. This is contrary to the very purpose of FPIC.

Positive steps towards FPIC

The International Finance Corporation (IFC) – part of the World Bank Group has approved a revised version of the Sustainability Framework that it uses to guide investment decisions. These decisions, which often concern large-scale projects, have the potential for profoundly detrimental impacts on the identities, cultures and well-being of Indigenous peoples.

In the past, the IFC claimed that it did not need to bring its policies into line with the standard of free, prior and informed consent, because free, prior and informed consultation was ‘functionally equivalent’ to this human rights norm. Such an approach still exists in the latest version, with some changes , and is now being called ‘Informed Consultation and Participation’.

On May 12, 2011, IFC announced: ‘For projects with potential significant adverse impacts on indigenous peoples, IFC has adopted the principle of ‘Free, Prior, and Informed Consent’ informed by the 2007 United Nations Declaration on the Rights of Indigenous Peoples.’ While improvements in IFC’s Sustainability Framework are still required, the positive steps taken on FPIC should be acknowledged and built upon.

In the development context, FPIC should not apply to a fixed list of ‘special circumstances’ – even if such lists may be broadly stated. While such IFC lists may serve to provide useful examples, there could still be substantial impacts on Indigenous peoples in other situations that require their consent.

In Haida Nation, Canada’s highest court ruled in 2004 that the nature and scope of the Crown’s duty to consult would require the ‘full consent of [the] aboriginal nation ‘on very serious issues’. To date, the government of Canada has evaded addressing this criterion of ‘consent’ and focused on those potential consequences that are less serious.

In March 2011, the government of Canada issued its ‘Updated Guidelines for Federal Officials to Fulfill the Duty to Consult’. These Guidelines fail to consider the right of Indigenous peoples to FPIC, except to indicate Canada’s concern when such consent is ‘interpreted as a veto’.

It is deeply troubling that the Canadian government would selectively ignore serious situations that require Indigenous consent under Canada’s Constitution. The UN General Assembly has repeatedly emphasized the ‘importance of non-selectivity, impartiality and objectivity’, when addressing human rights.

Canada’s Guidelines also declare that the UN Declaration ‘does not alter the legal duty to consult’ in Canada. This ignores the rule of law. The Supreme Court of Canada has repeatedly ruled that declarations and other international instruments are ‘relevant and persuasive sources for interpretation’ of human rights in the domestic context.

In the Nagoya Protocol on access and benefit sharing of genetic resources, only ‘established’ rights – and not other rights based on customary use – appear to receive some protection. As CERD has concluded, such kinds of distinctions are discriminatory. They serve to dispossess Indigenous peoples of their rights relating to genetic resources, including FPIC.

We recommend the following measures to the Permanent Forum on Indigenous Issues (PFII), in relation to ‘free, prior and informed consent’ of Indigenous peoples. These recommendations include that the PFII:

1. Urge states and specialized agencies to adopt a standardized interpretation of FPIC, consistent with international human rights standards.

2. Highlight the need to address the unequal bargaining power generally existing between state/third party developers and Indigenous peoples, by ensuring that the peoples concerned have the necessary financial, technical and other assistance to fully and effectively participate at all stages. States have a role and responsibility to ensure just and democratic processes, consistent with the principle of sustainable and equitable development.

3. Urge states that are undermining FPIC to uphold their international obligations, so as to ensure full respect and implementation of all Indigenous peoples’ rights, including those in Treaties with such peoples. In this context, the UN Declaration on the Rights of Indigenous Peoples is inseparable from states’ obligations under diverse treaties.

4. Urge states to fully respect FPIC, in regard to all customary rights of Indigenous peoples to genetic resources without discrimination. Provisions in the Nagoya Protocol that could serve to dispossess Indigenous peoples of such resources lack validity and require urgent redress.

5. Urge states, in conjunction with Indigenous peoples, to adopt interim measures so that FPIC and other Indigenous rights are safeguarded. Too often, such rights are violated while Indigenous peoples are engaging in their own decision-making process and in negotiations on the development project being proposed.

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Joint Statement on Continuous violations of the principle of free, prior and informed consent in the context of UNESCO’s World Heritage Convention

UN Permanent Forum on Indigenous Issues, Tenth Session

New York, 16-27 May 2011

Agenda Item 3©: Follow-up to the recommendations of the Permanent Forum: free, prior and informed consent (Tuesday, 17 May 2011)

Submitted by: Endorois Welfare Council, Kenya; Na Koa Ikaika KaLahui Hawaii; Association OKANI, Cameroon; Ngorongoro NGOs Network (NGONET) Tanzania; Budakattu Krishikara Sangha, Karnataka, Western Ghats, India (representing Indigenous peoples of Pushpagiri Wildlife Sanctuary, Brahmagiri Wildlife Sanctuary, Talacauvery Wildlife Sanctuary, Padinalknad Reserved Forest, Kerti Reserved Forest); Centre for Minority Rights Development Kenya (CEMIRIDE); Mainyoito Pastoralist Integrated Development (MPIDO), Kenya; Pastoralists Indigenous Non-Govermental Organisations Forum (PINGOs Forum) Tanzania; Aha Kiole Council of Hawaii; Centre pour l’Education, la Formation et l’Appui aux Initiatives de Développement au Cameroun (CEFAID); Indigenous Peoples of Africa Co-ordinating Committee (IPACC); Pothigaimalai Adivasi Kanikkaran Samuthaya Munnetra Sangam (Kalakkad Mundanthurai Tiger Reserve, Western Ghats, India); Tanzania Network for Indigenous Pastoralists (TANIPE); Yiaku Peoples Association, Kenya; The Koani Foundation, Hawaii; Ke Aupuni o Hawaii; Adivasi Gothrajaan Sabha, Kerala (Aralam Wildlife Sanctuary, Western Ghats, India); Adivasi-Dalit Land Rights Committee, Kerala; Adivasi Gothra Mahasabha, Kerala, India (representing Shendurney Wildlife Sanctuary, Neyyar Wildlife Sanctuary, Peppara Wildlife Sanctuary, Kulathupuzha Range, Palode Range, Ranni Forest Division, Konni Forest Division, Achankovil Forest Division, Mankulam Range, Chinnar Wildlife Sanctuary, Silent Valley National Park, Attapadi Reserved Forest, Aralam Wildlife Sanctuary); Pastoralists and Hunter Gatherers Ethnic Minorities Network, Kenya; Unissons nous pour la Promotion des Batwa (UNIPROBA) Burundi; Kerala Girivarga Kanikkar Sangham (Shendurney Wildlife Sanctuary, Neyyar Wildlife Sanctuary, Peppara Wildlife Sanctuary, Kulathupuzha Range, Palode Range); Indian Confederation of Indigenous and Tribal Peoples (ICITP); Adivasi Ekta Parishad (India); United Peoples’ Federation of Assam (UPFA) India; All Dimasa Student’s Union (ADSU) India; All Barman Kachari Students’ Union (ABKSU) India; Borosa Onsai Afat (BOA) India; Saami Council; Asia Indigenous Peoples Pact (AIPP); Cordillera Peoples Alliance, Philippines; /XAM Association of South Africa; Rapa Nui Parliament; Network of the Indigenous Peoples-Solomons (NIPS), Solomon Islands; International Alliance of Indigenous Peoples of the Tropical Forests; Asociación Indígena Ambiental, Panama; International Organization of Indigenous Resource Development (IOIRD); Samson Cree Nation; Ermineskin Cree Nation; Montana Cree Nation; Louis Bull Cree Nation; Foundation for Aboriginal & Islander Research Action (FAIRA) Australia; The Aldet Centre-Saint Lucia; Self-governing Administrative Mechanism of the Indigenous People (Bethechilokono) of Saint Lucia (SAM-BGC); Caribbean Antilles Indigenous Peoples Caucus & The Diaspora (CAIPCD); Genetic Resources, Traditional Knowledge and Folklore International (GRTKF Int.); Fundación para la Promoción del Conocimiento Indígena (FPCI), Panama; Tebtebba Foundation, Philippines; Russian Association of Indigenous Peoples of the North (RAIPON); Unión Nacional de Abogados y Abogadas Indígenas de Panama (UNAIPA); Centro de Asistencia Legal Popular (CEALP), Panama; Organización Indígena Kus-Kurá S. C., Costa Rica; Kirat Welfare Society, Nepal; First Peoples Human Rights Coalition; Indigenous Environmental Network (IEN); Indigenous World Association; American Indian Law Alliance; International Indian Treaty Council; Instituto Peruano de Educación en Derechos Humanos y la Paz (IPEDEHP); TARA-Ping Pu, Taiwan; TIMC (Takao Indigenous Makatao Council), Taiwan; Union of British Columbia Indian Chiefs; Centro de Estudios Mapuche para el Desarrollo de los Pueblos Indígenas, Chile; Azkintuwe – El Periódico del País Mapuche, Chile; GEMA ALAM West Nusa Tenggara, Indonesia; FIMI North America (International Indigenous Women’s Forum); Innu Takuaikan Uashat Mak Mani-Utenam; Earth Peoples; Netherlands Centre for Indigenous Peoples (NCIV); Hawai’i Institute for Human Rights; Society for Threatened Peoples International; Canadian Friends Service Committee (Quakers); Forest Peoples Programme; International Work Group for Indigenous Affairs (IWGIA).

Introduction

1. We would like to again bring to the attention of the Permanent Forum our serious concern about the continuous and ongoing disrespect of the principle of free, prior and informed consent by UNESCO’s World Heritage Committee when it designates sites in Indigenous peoples’ territories as “World Heritage sites”.

2. This issue has already been brought to the attention of the Permanent Forum on several occasions, by Indigenous peoples and organizations from many different parts of the world.1

3. There are numerous examples of Indigenous sites on the World Heritage List that have been inscribed without the free, prior and informed consent of the Indigenous peoples concerned. In many cases Indigenous peoples were not even consulted when their territories were designated as World Heritage sites, although this designation can have far-reaching consequences for their lives and human rights, their ability to carry out their subsistence activities, and their ability to freely pursue their economic, social and cultural development in accordance with their right of self-determination.

4. The practice of the World Heritage Committee is inconsistent with the provisions of the UN Declaration on the Rights of Indigenous Peoples,2 the Programme of Action for the Second International Decade of the World’s Indigenous People,3 the United Nations Development Group’s Guidelines on Indigenous Peoples’ Issues,4 the comments and concluding observations of the UN human rights treaty monitoring bodies,5 the views of the UN Special Rapporteur on the rights of indigenous peoples,6 the Resolutions of the 4th World Conservation Congress (Barcelona, 2008),7 and the recommendations of the Permanent Forum on Indigenous Issues.8

5. It is also inconsistent with UNESCO’s objective to integrate a human rights-based approach into all of its programmes and activities.9 It contrasts with the practice of UNESCO’s Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, which has adopted Operational Directives ensuring that elements can only be inscribed on UNESCO’s lists of intangible cultural heritage if the free, prior and informed consent of the communities and groups concerned has been obtained.10

6. Last year, at the World Heritage Committee’s 34th Session in Brasilia (25 July – 3 August 2010), the Committee inscribed two sites on the World Heritage List although questions had been raised regarding Indigenous peoples’ participation in the nomination processes and their free, prior and informed consent: the Northwest Hawaiian Islands Marine Monument (“Papaha-naumokua-kea Marine National Monument”)11 and the Ngorongoro Conservation Area in Tanzania.12 The latter was re-inscribed as a cultural World Heritage site, because of its significance as an archaeological site, not because of the significance of the Maasai culture.13 We are concerned that the Committee’s recognition of only the archaeological values, and not the living cultural values of the Indigenous residents, may exacerbate the already existing imbalances in the management framework for the Ngorongoro Conservation Area14 and lead to additional restrictions on the livelihoods of the Indigenous residents and further infringements on their rights.

7. This year, at its upcoming 35th Session in Paris (19-29 June 2011), the World Heritage Committee will be considering several nominations of sites that are located in Indigenous peoples’ territories. These include (among other sites): – “Western Ghats” (India); – “Trinational de la Sangha” (Republic of Congo / Cameroon / Central African Republic); – “Kenya Lake System in the Great Rift Valley” (Kenya).

All three of the mentioned sites are nominated under natural World Heritage criteria alone, without giving due consideration to the Indigenous cultural values connected to these areas and Indigenous peoples’ roles as stewards of these places. Moreover, all of the mentioned nominations were prepared without meaningful involvement and consultation of the Indigenous peoples concerned and without obtaining their free, prior and informed consent.15

Recommendations

We urge the Permanent Forum to call on the World Heritage Committee:

a) to defer all World Heritage nominations of sites in Indigenous peoples’ territories if it cannot be ensured that the Indigenous peoples have been adequately consulted and involved and that their free, prior and informed consent has been obtained;

b) to defer the nominations of “Western Ghats”, “Trinational de la Sangha” and “Kenya Lake System in the Great Rift Valley”, and call on the respective State parties to consult and collaborate with the Indigenous peoples concerned, in order to ensure that their values and needs are reflected in the nomination documents and management plans and to obtain their free, prior and informed consent;

c) to endorse the UN Declaration on the Rights of Indigenous Peoples and use it as the basic reference framework when making decisions about World Heritage sites in Indigenous territories, together with the UNDG Guidelines on Indigenous Peoples’ Issues;

d) to immediately convene a Working Group of experts on Indigenous peoples’ issues, with a mandate to draft an overarching policy on Indigenous peoples and to recommend changes to the Operational Guidelines and other appropriate steps to ensure that the implementation of the World Heritage Convention is consistent with the UN Declaration on the Rights of Indigenous Peoples. The Working Group should include representatives of the Permanent Forum, the UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), the Special Rapporteur on the rights of indigenous peoples, representatives of Indigenous peoples from World Heritage areas, TILCEPA, and others.

e) to establish an Indigenous advisory body which should be involved in the evaluation of all nominated properties that are situated in the territories of Indigenous peoples and in monitoring the conservation and management of such World Heritage properties.16

We also strongly urge the Permanent Forum to send a representative to the upcoming 35th session of the World Heritage Committee in Paris (19-29 June 2011), in order to convey these recommendations and concerns to the Committee.

Background information

1 We note in particular a submission by the Mirrar people from Kakadu National Park in Australia at the Permanent Forum’s First Session in 2002; a collective statement of Indigenous Peoples of the Pacific Region in 2004; a statement of the South Asia Indigenous Women Forum in 2004; an intervention of the Continental Network of Indigenous Women of South America in 2004; and a statement of the Indigenous Peoples Caucus of the Greater Caribbean in 2007:
Submission by the Mirror People, Kakadu, Australia, UNPFII, First session (2002), Item 6(b): Environment,www.docip.org/gsdl/collect/cendocdo/index/assoc/HASHec32/1edbc0bf.dir/D_29.pdf:
“In this United Nations International Year of Cultural Heritage 2002, the Mirrar People of the Kakadu (Australia) World Heritage area recommend the following to the United Nations Permanent Forum on Indigenous Issues.

That the Permanent Forum undertake an Independent study of Indigenous Peoples and World Heritage. This study should include;
1 an analysis of the effectiveness of the World Heritage Convention in the protection of Indigenous peoples sacred sites and living tradition;
2 an analysis of the World Heritage Committee’s current review of its Operational Guidelines and the potential impact on Indigenous peoples living in World Heritage areas;
3 an analysis of Indigenous peoples representation and input to the World Heritage Committee’s decision-making processes;
4 the inclusion of case studies from all Indigenous peoples living in World Heritage Areas; and
5 include recommendations to ECOSOC regarding the protection of Indigenous Peoples sacred sites and World Heritage areas.”
Collective Statement of Indigenous Peoples of the Pacific Region, UNPFII, Third Session (2004), Item 4(b): Environment, www.docip.org/gsdl/collect/cendocdo/index/assoc/HASH0143/c5e8e610.dir/03... (at p. 3):
“To date, designation of World Heritage Sites by UNESCO occurs largely without the consent of the Indigenous peoples whose lands, sacred sites, and otherwise culturally significant areas are encompassed within these World Heritage Sites. Designating these sites by the UN and member states is happening because it creates economic value for tourism. Any further designation must occur only in consultation with Indigenous peoples and only after their free prior and informed consent has been given.”

Statement of the South Asia Indigenous Women Forum (SAIWF), UNPFII, Third Session (2004), Item 4(b): Environment, www.docip.org/gsdl/collect/cendocdo/index/assoc/HASH0143/c5e8e610.dir/03...
“We request the Permanent Forum to urge the UNESCO that designation of World Heritage Sites must not occur without the consent of Indigenous Peoples. Designation of World Heritage Sites occurred largely without the consent of Indigenous Peoples, for example in St. Lucia. Designating these sites by the UN and member states is happening because it creates economic value for tourism.”

Intervención del Enlace Continental de Mujeres Indígenas de Sudamérica, FPCI, Tercera sesión (2004), Tema 4(e): Cultura, www.docip.org/gsdl/collect/cendocdo/index/assoc/HASH01b2/65a93e7a.dir/10...
“Otro de los temas que queremos sugerir como una recomendación es que la UNESCO informe en la proxima sesión sobre la participación de los pueblos indígenas en todo lo referido a las declaraciones de patrimonio de la humanidad en territorios indígenas, tales el caso de la quebrada de Humahuaca en la provincia de Jujuy entre otros en Argentina. Que siguiendo las recomendaciones del comité de patrimonio Mundial de (Cairns 2000/Helsinki2001) sobre la inclusión de nuevas categorías, es que nuestro pais decidió proponer la candidatura incluyendo territorios de mas 65 comunidades originarias y a sus culturas. Nosotros no nos oponemos a la preservación de las grandezas naturales que nuestros abuelos vienen cuidadando mas de 10.000 anos pero queremos asegurarnos de nuestra participación indígena en todo lo referido a la ya declarada Patrimonio de la humanidad de la Quebrada de Humahuaca.
Otra de las recomendaciones que queremos sugerir es que la UNESCO establezca espacios de participación indígena en los órganos de selección de lugares declarados, como patrimonio culturales y o naturales como asi también, en los órganos de control. Esta propuesta la hacemos en función a que son muchos los lugares declarados patrimonio cultural. Natural que son territorios de los pueblos indígenas.”

Statement of the Indigenous Peoples Caucus of the Greater Caribbean, UNPFII, Sixth Session (2007), Item 4(g), Second International Decade of the World’s Indigenous People, www.docip.org/gsdl/collect/cendocdo/index/assoc/HASH01bb/ffe52bde.dir/PF...
“we recommend that the Permanent Forum: […] Urge UNESCO to sponsor a special regional meeting with representatives of the Indigenous Peoples Caucus of the Greater Caribbean as well as other regional initiatives to facilitate their full and effective participation in its work relating to… nomination of indigenous sites to the World Heritage List…”

2 For example, Article 32(2) of the UN Declaration on the Rights of Indigenous Peoples (UN Doc. A/RES/61/295, Annex), adopted by the UN General Assembly on 13 September 2007, states:
“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources…”
Art. 41 of the Declaration requires UN Agencies and other intergovernmental organizations to “contribute to the full realization of the provisions of this Declaration” and to establish ways and means of “ensuring participation of indigenous peoples on issues affecting them.”
Art. 42 calls on UN Agencies to “promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.”

3 According to the Programme of Action for the Second International Decade of the World’s Indigenous People (UN Doc. A/60/270), adopted by the UN General Assembly on 16 December 2005, one of five objectives of the Decade is:
“Promoting full and effective participation of indigenous peoples in decisions which directly or indirectly affect their lifestyles, traditional lands and territories, their cultural integrity as indigenous peoples with collective rights or any other aspect of their lives, considering the principle of free, prior and informed consent.” (para. 9ii)
The Programme of Action also states that “programmes and initiatives relating to indigenous cultures should follow the principle of free, prior and informed consent of indigenous peoples. Particular caution should be exercised when elaborating tourism and national park projects in indigenous territories.” (para. 19)
In regard to World Heritage nominations, the Programme of Action states:
“UNESCO is urged to establish mechanisms to enable indigenous peoples to participate effectively in its work relating to them, such as the… nomination of indigenous sites in the World Heritage List and other programmes relevant to indigenous peoples.” (para. 16, emphasis added)

4 United Nations Development Group Guidelines on Indigenous Peoples Issues, February 2008, p. 18:
“conservation efforts on indigenous lands, including the establishment of new and management of existing protected areas, have to take place with the free, prior and informed consent and full participation of the communities concerned.”

5 See, e.g., Committee on the Elimination of Racial Discrimination, General Recommendation No. 23: Indigenous Peoples, 18 August 1997, para. 4(d):
“The Committee calls in particular upon States parties to… Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent…”
Committee on the Elimination of Racial Discrimination, Concluding observations: Ethiopia (2007), UN Doc. CERD/C/ETH/CO/15, para. 22:
“the Committee remains concerned about the consequences for indigenous groups of the establishment of national parks in the State party and their ability to pursue their traditional way of life in such parks…
In the light of its general recommendation No. 23 (1997) on the rights of indigenous peoples, the Committee recommends that the State party provide, in its overdue report, information on the effective participation of indigenous communities in the decisions directly relating to their rights and interests, including their informed consent in the establishment of national parks, and as to how the effective management of those parks is carried out.
The Committee also recommends that the State adopt all measures to guarantee that national parks established on ancestral lands of indigenous communities allow for sustainable economic and social development compatible with the cultural characteristics and living conditions of those indigenous communities.”

6 See, e.g., Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, UN Doc. A/HRC/6/15, 15 November 2007, paras. 68-72:
“On no account should development activities be allowed to run counter to the general principles of the human rights of indigenous peoples…
Social and development policies and programmes relating to indigenous peoples must be based on the free, prior and informed consent of the communities concerned. These communities must be effectively involved in identifying priorities and in designing, implementing and evaluating the development activities…
[International agencies] engaged in cooperation work should refrain from supporting programmes and projects which, either directly or indirectly, are or could be conducive to the violation of the rights of indigenous peoples…”

7 For example, World Conservation Congress Resolution 4.048 (2008) calls on governments to work with Indigenous peoples’ organizations to:
“ensure that protected areas which affect or may affect indigenous peoples’ lands, territories, natural and cultural resources are not established without indigenous peoples’ free, prior and informed consent and to ensure due recognition of the rights of indigenous peoples in existing protected areas”.

8 See e.g., UNPFII, Report on the Third Session (2004), UN Doc. E/C.19/2004/23, para. 80:
“The Forum recommends that the World Conservation Union Congress… emphasize… the need for the full respect for indigenous peoples’ rights and the need for indigenous peoples’ free prior informed consent to be obtained before the declaration or in the management of any protected area which may affect them.”
UNPFII, Report on the Fifth Session (2006), UN Doc. E/C.19/2006/11, para. 16:
“The Permanent Forum recommends that the United Nations Educational, Scientific and Cultural Organization (UNESCO)… establish an institutional partnership with indigenous peoples so that they can fully participate in the monitoring and other mechanisms of UNESCO conventions… that are relevant to indigenous peoples. The Permanent Forum further recommends that UNESCO establish an advisory group of indigenous experts to provide advice.”
UNPFII, Report on the Seventh Session (2008), UN Doc. E/C.19/2008/13, para. 137:
“The Permanent Forum requests that the specialized agencies of the United Nations, in accordance with articles 41 and 42 of the United Nations Declaration on the Rights of Indigenous Peoples, review their policies and programmes in order to comply with the provisions contained in the Declaration ensuring respect for the right to self-determination of indigenous peoples and the right to free, prior and informed consent.”
UNPFII, Report on the Eighth Session (2009), UN Doc. E/C.19/2009/14, para. 37:
“The Permanent Forum recommends that States and United Nations agencies apply the rights affirmed in the United Nations Declaration on the Rights of Indigenous Peoples throughout their operational frameworks for implementing the Programme of Action for the Decade, in particular its objective on free, prior and informed consent by indigenous peoples.”
UNPFII, Report on the Ninth Session (2010), UN Doc. E/C.19/2010/15, paras. 24 and 131:
“The Permanent Forum calls upon UNESCO… to support indigenous peoples in their process of cultural heritage restoration and strengthening. This process should be guided by indigenous peoples in order to avoid the misuse and distortion of indigenous peoples’ culture, practices and knowledge and to respect their perspectives and aspirations.”
“The Permanent Forum reiterates its concern about conservation efforts, including the designation of national parks, biosphere reserves and world heritage sites, which frequently lead to the displacement of indigenous peoples from their traditional lands and territories…”
Statement of the United Nations Permanent Forum on Indigenous Issues at the 34th Session of the UNESCO World Heritage Committee, Brasilia, 2010 (delivered by UNPFII member Victoria Tauli-Corpuz), http://xa.yimg.com/kq/groups/20674633/27593986/name/UNPFII+Statement+WHC...
“I am here to raise with the WHC the concerns of indigenous peoples raised before us in the previous sessions but more particularly during the 9th session which was held in April 2010. At this 9th session, two issues were brought to our attention and these are the Ngorongoro Conservation Area (NCA) in Tanzania and the Northwest Hawaiian Islands Marine Monument (NWHIMM) now called referred to as Papahanaumokukea Marine National Monument…
The UN Permanent Forum… would like to reiterate that whenever decisions are taken by States and intergovernmental bodies that affect indigenous peoples there should be proper consultations done and their free, prior and informed consent should be obtained before any development or conservation project is brought into their territories. There is a list of indigenous sites inscribed in the World Heritage List without the adequate participation and involvement of indigenous peoples which the Permanent Forum has received since its first session in 2002.
In light of these and other similar situations, the UN Permanent Forum in its 9th session called upon UNESCO, the Secretariat of the Conference on Biological Diversity and other UN bodies and agencies to support indigenous peoples in their processes of cultural heritage restoration and strengthening. These processes should be guided by indigenous peoples in order to avoid the misuse and distortion of indigenous peoples’ cultures, practices and knowledge and to respect their perspectives and aspirations…
To conclude I would like to present the following recommendations to the World Heritage Committee for your consideration.
1. That the practice of inviting a member of the UNPFII to attend the WHC sessions be sustained and that it be given a time slot to raise issues relevant to the various agenda items under discussion.
2. That the allegations raised by the indigenous peoples’ organizations related to the Ngorongoro Conservation Area and the NWHIMM be investigated further by the UNESCO, IUCN with the participation of a member of the UN Permanent Forum on Indigenous Issues to verify the information received in terms of how the rights of indigenous peoples are violated and to make proposals on how to address these situations and similar ones which can arise in the future.
3. That the initial efforts to establish a World Heritage Indigenous Peoples’ Council of Experts (WHIPCOE) be revisited and efforts to set up an appropriate mechanism whereby indigenous experts can provide advice to the World Heritage Committee and the World Heritage Center be revived.
4. That adequate consultation and participation of indigenous peoples be ensured and their free, prior and informed consent be obtained, when their territories are being nominated by States Parties to be inscribed as World Heritage Sites.
5. That the involuntary displacement or relocation of indigenous peoples from World Heritage Sites be stopped.
6. That the subsistence economic activities of indigenous peoples needed for their survival that are taking place in World Heritage Sites not be undermined or illegalized and adequate social services be provided to indigenous peoples living in these sites.
7. That the UN Declaration on the Rights of Indigenous Peoples and the UNDG Guidelines on Indigenous Peoples’ Issues be used as frameworks when World Heritage Sites found in indigenous territories are nominated and managed as well as for missions done in these areas.
8. That the inclusion of indigenous experts be considered when missions are held to review the World Heritage Sites located in their territories.”

9 UNESCO Strategy on Human Rights, adopted by the General Conference on 16 October 2003, UNESCO Doc. 32 C/57, paras. 10-14; UNESCO Medium-Term Strategy for 2008-2013, adopted by the General Conference on 2 November 2007, UNESCO Doc. 34 C/4, paras. 6, 69.

10 Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage (2010), Doc. ITH/10/3.GA/CONF.201/Resolutions Rev., RES. 3.GA 5, Annex, para I.2:
“Criteria for inscription on the Representative List of the Intangible Cultural Heritage of Humanity…
In nomination files, the submitting State(s) Party(ies) is (are) requested to demonstrate that an element proposed for inscription on the Representative List of the Intangible Cultural Heritage of Humanity satisfies all of the following criteria: …
R.4 The element has been nominated following the widest possible participation of the community, group or, if applicable, individuals concerned and with their free, prior and informed consent.”
Similarly, para. I.1 (List of Intangible Cultural Heritage in Need of Urgent Safeguarding) and para. I.3 (selection of programmes, projects and activities that best reflect the principles and objectives of the Convention).

11 In regard to the Northwest Hawaiian Islands Marine Monument, the World Heritage Committee had received the following complaint (receipt is acknowledged in Doc. WHC-10/34.COM/10C, 31 May 2010, para. 19):
Objections and Claims of NaKoa Ikaika KaLahui Hawaii and The Koani Foundation to the Nomination of the Northwest Hawaiian Islands Marine Monument (NWHI) to the UNESCO World Heritage List & to the UNESCO/WHC Pacific Action Plan, 28 May 2010, pp. 1-3:
“1. Petitioners object to the nomination of the “Papahanaumoku” (NWHI) Monument to the UNESCO/World Heritage List… Petitioners object… because we and other indigenous Hawaiians have not been afforded our right of consultation, and are negatively impacted by Federal processes which abridge our rights to sustenance, and to economic, cultural and social development in the NWHI. Petitioners and other Native Hawaiians have not given their free, prior and informed consent to the listing of the NWHI as a World Heritage Site. The management plan proposed by the United States abridges Indigenous rights, does not meet the criteria for WH listing and contains numerous misrepresentation and omissions.
2. Petitioners object to the UNESCO/WHC processes and procedures that have had the effect of excluding petitioners and other Native Hawaiians from the nomination and evaluation process and which have been undertaken in secret and in violation of petitioners’ human rights set forth herein…
Nakoa/Koani question the Advisory Bodies’ (ICOMOS and IUCN) capacity to be independent (IUCN) and object to the processes followed by the site evaluators who are supposed to meet with all stakeholders including indigenous peoples who are practitioners, fishermen etc. This did not occur although the evaluators spent nearly a month in Hawaii…
RECOMMENDATIONS:…
1. Regarding the World Heritage nomination of the NWHI (“Papahanaumoku”):
a. NaKoa/Koani recommend that the UNESCO/WHC defer action on the nomination of the NWHI and request that the Obama Administration consult with PETITIONERS to resolve issues relating to the rights of indigenous Hawaiians to access their trust resources in the NWHI (including sustenance rights), and to provide a fair process for Hawaiians to obtain permits for cultural and other uses of their resources…
2. Regarding the procedures and processes utilized by UNESCO/WHC and their failure to integrate the human rights protections contained in the UN Declaration on the Rights of Indigenous Peoples or adopt internal policies relating thereto:
a. Nakoa/Koani recommend that the UNESCO/WHC immediately convene a Working Group of Indigenous Experts, including experts from the Pacific, the Special Rapporteur on the situation of human rights of indigenous people (Jim Anaya), representatives of the UN Permanent Forum on Indigenous Issues, and others.
b. Tasks of the Working Group will be 1) to draft an overarching policy on Indigenous Peoples (Model Policy) to guide the work of UNESCO and the WHC…”
The World Heritage Centre also received a letter from Rowena Akana, an elected trustee of the Office of Hawaiian Affairs (OHA), dated 12 July 2010, which stated:
“I am writing to you to voice my STRONG OPPOSITION to the U.S. nomination of Papahanaumokuakea as a UNESCO World Heritage Site on behalf of the Native Hawaiian beneficiaries of OHA who are the legal beneficiaries of the lands and resources of the NWHI…
[T]he cultural, religious and economic rights of native Hawaiians to fishing and other resources within Papahanaumokuakea… are not included in the Management Plan…
OHA Trustees and native Hawaiians were not properly consulted. There have been ‘public’ hearings but none for the native beneficiaries. No effort was made to do education or outreach in native Hawaiian Homestead communities. No effort was made to ensure that native Hawaiian rights for gathering, worship and to participate in conservation management were protected. As a result there is no actual provision for cultural uses within Papahanaumokuakea, although language in the application indicates this is so, in reality it has not been implemented…
UNESCO contractors (the IUCN and ICOMOS) came to Hawaii and were supposed to meet with all ‘stakeholders.’ However, they did not meet with the OHA Trustees or native Hawaiian Community or Homestead Associations. Instead they limited their discussions to the Hawaiians selected by the US who do not represent the native Hawaiian beneficiaries.
The World Heritage Site criterion requires that all stakeholders be included in the nomination process, but OHA & indigenous Hawaiians were excluded, with the exception of a few who were designated ‘Cultural Advisors’ to the Monument…
I am requesting that the U.S. nomination of Papahanaumokuakea as a World Heritage Site be postponed until the OHA can address the matters discussed above with the Administration of U.S. President Barak Obama.”
The issue of the “Papaha-naumokua-kea” nomination was also raised at the 2010 Session of the Permanent Forum, see: Pacific Collective Intervention re: Indigenous Fishing and Cultural Rights in the Pacific Ocean and related Human Rights Violations, UNPFII, Ninth Session (2010), Item 7: Future Work of the Permanent Forum, www.docip.org/gsdl/collect/cendocdo/index/assoc/HASH0118/4984bc47.dir/PF10kenneth158.PDF.

12 The fact that the renomination of the Ngorongoro Conservation Area under cultural criteria was prepared without meaningfully involving the Maasai and submitted without their free, prior and informed consent, is abundantly clear not only from the nomination document itself, but also from the Advisory Body Evaluation by IUCN as well as a document submitted by the Indigenous residents of the Ngorongoro Conservation Area to an official UNESCO mission in December 2008:
IUCN Evaluations of Nominations of Natural and Mixed Properties to the World Heritage List: Ngorongoro Conservation Area (Tanzania), May 2010, UNESCO Doc. WHC.10/34.COM/INF.8B2, p. 189:
“The nomination document notes the interaction of the Maasai with the landscape of Ngorongoro, but this appears to be very much a secondary consideration, relative to the palaeontological sites related to human evolution.
Reviewers noted that there is little or no information presented in the nomination regarding consultation with the Maasai as key stakeholder in Ngorongoro. It is suggested important to confirm that the nomination was prepared with free prior and informed consent from the Maasai. ICOMOS should also consider how the Maasai are represented with respect to management of the NCA, and whether this is credible and effective.”
Statement, findings and recommendations from the indigenous residents and stakeholders of Ngorongoro Conservation Area to decision-makers, national and international organizations (presented to the IUCN/UNESCO World Heritage Site monitoring team to Ngorongoro Conservation Area in December 2008), www.tnrf.org/files/E-INFO-UNESCO-IUCN_Ngorongoro_Residents_Statement_dec...
“Participation in NCAA decision making bodies of local communities and local authorities is highly insufficient. People of NCA are not enjoying the same rights as other citizens of Tanzania… At the moment the right of association of people is not the same as in other parts of Tanzania. Consultative procedures are therefore not in place. No consultation with local people on the establishment of NCA as a World Heritage site was undertaken.”

13 The World Heritage Committee did not consider the living culture of the Maasai residents of the Ngorongoro Conservation Area as worthy of special protection under the World Heritage Convention, agreeing with the assessment of its Advisory Body ICOMOS “that the Maasai pastoral landscape [cannot] be justified as being of Outstanding Universal Value, nor does it satisfy conditions of integrity or authenticity”. According to ICOMOS, the Maasai pastoral landscape does not meet the conditions of integrity and authenticity because the “distinctive pastoralism [of the Maasai] within the Conservation area has now been substantially changed into agro-pastoralism…” (ICOMOS, 2010 Evaluations of Cultural Properties – Ngorongoro Conservation Area (Tanzania), UNESCO Doc. WHC-10/34.COM/INF.8B1, pp. 68-69).
However, in contrast to the claims by ICOMOS, the Maasai have always resorted to cultivation in difficult times (such as droughts or diseases among their herds), so that small scale cultivation can be said to be an essential part of the pastoral system. The pastoral system of the Maasai in Ngorongoro has been disrupted because of the restrictions imposed by conservation authorities, so that now it is no longer possible for the Maasai in the Conservation Area to live a life that depends on livestock alone. Small scale agriculture is thus essential for the survival of the people in the area. These misunderstandings and misrepresentations could maybe have been avoided, if the Maasai had been adequately involved in the nomination procedures.
According to the Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC. 08/01, January 2008, “the respect due to all cultures requires that cultural heritage must be considered and judged primarily within the cultural contexts to which it belongs” (para. 81). We are concerned that the concepts of ‘outstanding universal value’, ‘integrity’ and ‘authenticity’ are interpreted and applied in ways that are disrespectful of Indigenous peoples and their cultures, inconsiderate of their circumstances and needs, preclude cultural adaptations and changes, and serve to undermine their human rights.

14 On these imbalances, see e.g. Olenasha, William (2006), “Parks Without People: A Case Study of the Ngorongoro Conservation Area, Tanzania”, in International Alliance of Indigenous and Tribal Peoples of Tropical Forests (ed.), Indigenous Peoples’ Contributions to COP-8 of the Convention on Biological Diversity, Chaing Mai: IAITPTF, pp. 151-163, www.ffla.net/new/es/bibliografia-recomendada/doc_download/60-parks-witho....

15 In regard to Kenya Lakes System, see UNPFII, Ninth Session, Annex to Final Report of the United Nations Inter-Agency Support Group on Indigenous Issues (IASG), Annual meeting 2009 hosted by UNEP and UNHABITAT, 28-30 September 2009, Nairobi, Kenya, UN Doc. E/C.19/2010/CRP. 2, para. 10:
“A representative of the Endorois people of the Lake Bogoria region in Kenya raised the issue of the nomination of Lake Bogoria as a world heritage site without prior consultation with the people indigenous and the resulting dispute. He sought clarification of the nomination process.”

As regards the Trinational de la Sangha, extensive fieldwork by the Forest Peoples Programme in the CAR section of the Trinational (between April 2008 and February 2011) found no evidence that Indigenous peoples were consulted or that their free, prior and informed consent was sought regarding the World Heritage nomination. Generally, there is a lack of Indigenous participation in the management of the protected area, which was gazetted in 1990 without obtaining the Indigenous peoples’ free, prior and informed consent. See Woodburne, Olivia (June 2009), “Central African Republic – Securing indigenous peoples’ rights in conservation: Review of policy and implementation in the Dzanga-Sangha Protected Area Complex”, www.forestpeoples.org/fr/node/343, pp. 1, 18: “participation in decision-making processes is low; although some BaAka are employed by the [Dzanga-Sangha] project, few other benefits arising from conservation or eco-tourism are shared equitably with communities; there are no mechanisms to ensure that principles of free, prior and informed consent are adhered to; and customary use has not informed park/reserve design, leaving many communities unable to access sufficient natural resources for subsistence purposes. […] The BaAka state clearly that no consent was sought from them prior to the start of the conservation project, and, moreover, that it has never since been sought for any aspect of the project.”
In the Cameroonian part of the Trinational de la Sangha, Indigenous peoples and their organisations were not consulted about the World Heritage nomination either. According to the Baka indigenous organization OKANI, “it is clear that the Indigenous peoples were not aware of this process, even less so about the consequences that it will have for communities”. The protected area (Lobéké National Park) was gazetted in 2001 without the free, prior and informed consent of the Indigenous peoples concerned. See Jackson, Dorothy (2004) “Implementation of international commitments on traditional forest-related knowledge: Indigenous Peoples’ experiences in Central Africa”, http://www.forestpeoples.org/fr/node/710, p. 45.

16 The 2000 proposal to establish a World Heritage Indigenous Peoples’ Council of Experts (WHIPCOE) should be revisited in this context. See World Heritage Committee, 25th Session (2001), Progress Report on the Proposed World Heritage Indigenous Peoples Council of Experts (WHIPCOE), UNESCO Doc. WHC-2001/CONF.208/13.