Statements of the Asia Indigenous Peoples: Eighth Session of Expert Mechanism on the Rights of Indigenous Peoples

Item 3 of the provisional agenda 


Follow-up to the World Conference on Indigenous Peoples, including the review of the mandate of the Expert Mechanism

Delivered by Jennifer Tauli Corpuz, Tebtebba Foundation

20-24 July 2015

Thank you Mr Chairperson,

The Asia Indigenous Peoples Caucus is pleased to provide its comments on this agenda item. In making our comments, we specifically refer to document A/HRC/EMRIP/2015/CRP.2, which is the report of the open-ended meeting of indigenous peoples on the follow-up to the WCIP, held in March 2015, and to document A/70/84, which is the report of the Secretary-General to the UN General Assembly on Progress made in the implementation of the outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples.

We thank the Asia Indigenous Peoples Pact, the International Indian Treaty Council, the National Congress of Australia’s First People and the Sami Parliament of Norway for organizing and hosting the meeting of indigenous peoples’ representatives from all indigenous regions on follow-up to the WCIP. We strongly agree with the recommendation that the Human Rights Council should initiate the process of improving the mandate of EMRIP as called for in OP 28 of the Outcome Document of the WCIP, in a way which ensures the full and effective participation of Indigenous Peoples. An improved EMRIP mandate should complement and not duplicate the mandates of the Special Rapporteur on the Rights of Indigenous Peoples and the Permanent Forum on Indigenous Issues. The Asia Indigenous Peoples’ Caucus supports the recommendations from the meeting, particularly on improving the mandate of the EMRIP.

We note that the mandates of all the 3 indigenous-specific UN bodies allow, in varying degrees, for a monitoring function. Under the present mandate of EMRIP to provide the Human Rights Council with thematic advice, in the form of studies and research, there are enhancements to the methods of work that can improve its monitoring function. In this regard, we encourage more States to provide submissions to the EMRIP, whenever requested in relation to specific studies, detailing their efforts to implement the UN Declaration on the Rights of Indigenous Peoples, as well as the WCIP Outcome Document through National Implementation Plans.

We express our appreciation for the report of the Secretary-General on progress in the implementation of the WCIP Outcome Document, as well as the 12 responses from Member States and 425 responses from indigenous organizations on which the progress report was based. The responses contain important, though limited, specific actions by States and indigenous peoples on implementing the Outcome Document. We call on States to develop their National Implementation Plans and to maximize certain events, such as the celebration of the International Day of te World’s Indigenous Peoples in August 9 of every year to bring indigenous peoples together at the national level in order to monitor and evaluate progress made in the implementation of the UNDRIP and the WCIP Outcome Document. We further recommend that more States provide their responses to questionnaires on implementation of the UNDRIP and the WCIP Outcome Document.

We note with appreciation the progress made on OP31: development of a system-wide action plan (SWAP) to achieve the end of the Declaration. In this regard, we recall the recommendations put forth by the Asia Indigenous Peoples’ Caucus at the Fourteenth Session of the Permanent Forum on Indigenous Issues this year and reiterate them here.

Finally, we recall that experiences of indigenous peoples of violations of their collective and individual human rights by extractive industries was a key driving force for the call to organize the World Conference on Indigenous Peoples. Earlier this month, the first session of the open-ended intergovernmental working group in charge of elaborating an international legally binding instrument on transnational corporations (TNCs) and other business enterprises with respect to human rights was convened. The deliberations of this working group will have implications on the operation of extractive industries in indigenous peoples’ territories. Therefore, we call on the EMRIP, as part of its follow-up to the WCIP, to participate actively in the working group on a legally binding international instrument on business and human rights. The full and effective participation of indigenous peoples in this process should be enabled.

Thank you for your attention.

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Agenda Item 4: Panel Discussion on Indigenous Peoples’ Human Rights in Relation to Business Enterprise

Statement of the KATRIBU Kalipunan ng Katutubong Mamamayan ng Pilipinas

Presented by: Pya Macliing Malayao, Secretary General, KATRIBU

Thank you Mr. Chair, and thank you for all the relevant and timely sharing and recommendations from the panel today.

In the hope to contribute to the discussion, I would want to further share on our situation in the Philippines.

The extra-judicial killings against indigenous peoples in our country are all related to the issues pertaining to our ancestral land and self-determination. Of the 61 indigenous peoples killed since June 2010, the beginning of the Aquino Regime, at least 29 are related to conflicts with big business in our ancestral territories.

In addition to these, even with existence of mechanisms and the 17 years of the Indigenous Peoples Rights Act, the inherent collective rights indigenous peoples to ancestral land and self-determination are being violated in terms of the processes of consultation, representation, decision-making, information, and assessing impacts or possible impacts of big business operations.

The lone participation of indigenous peoples in business and extractive activities affecting us is the Free, Prior and Informed Consent (FPIC) provision of the Indigenous Peoples Rights Act (IPRA.) However, the FPIC facilitated by the National Commission on Indigenous Peoples (NCIP) is usually acquired through manipulation, deceit, and coercion, giving the entry of big businesses an air of legitimacy, and adds to the illusion of democracy and ‘inclusive growth’. The trend has been hasty consultations of the wrong people leading to decisions being made only by individuals or chieftains, or through voting which has led to disunity or division of the community. Some examples are:

The Sabangan Hydroelectric Project (SEP) in Sabangan, Mt. Province, where in the traditional council of elders or At-atowan were not recognized nor convened for a consultation in the FPIC process by the NCIP. The SEP got the consent and the memorandum of agreement from 10 people – one who is not a native resident and four who are not part of the At-atowan. Worse, only the landowners whose properties would be directly affected by the project were consulted and were allowed to participate and who voted to grant the consent. The downstream communities were also not included during the FPIC processes.

Meanwhile, the Makilala Mining Company in Pasil, Kalinga, in cooperation with the NCIP, deliberately excluded in the FPIC process a village which will also be affected by the mining operation. The community then sent a letter to NCIP on this concern, but they were ignored. The NCIP then secretly hand-picked fake council of elders, and circulated its own resolution to authorize the newly constituted council of elders and a resolution for the communities’ consent. And during the Consensus Assembly called by the NCIP, the mining company failed to discuss their proposal for the mining exploration, and the proper information needed by the community for an informed and collective decision.

There are other documented cases which involve different forms of bribery, exclusion of concerned indigenous communities, and the involvement of the local and even national politicians.

Based on the experiences of our communities, and for the Philippine government to fulfill its commitment and obligation to respect the right to ancestral land and self-determination of the indigenous peoples, and to promote our genuine and effective participation in decision-making in any business enterprise, we put forward the following recommendations:

Revoke the Operational Plan Bayanihan counter-insurgency program which victimizes civilian indigenous peoples, and immediately pull-out the Armed Forces of the Philippines from the indigenous communities Revoke the Executive Order 546, and dismantle all para-military groups, and private security forces Dismantle the National Commission on Indigenous Peoples, which have been an active agent for the legalized land-grabbing and influx of destructive and repressive corporations in our ancestral territories. Recognize and respect the independent and traditional socio-political systems of the indigenous peoples, especially with regards to the processes of decision-making. Implement recommendations on the indigenous peoples from the previous Special Rapporteurs and of the other International Mechanisms And lastly, we urge the Philippine Government to invite the Special Rapporteur on the Rights of the Indigenous Peoples for a country visit as a way of assessing the situation of the indigenous peoples and garner additional concrete recommendations to bring forward our collective rights.

Thank you, Mr. Chair

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Item 5: Post-2015 development agenda and indigenous peoples’ rights

21 July 2015

Statement by: Pallab Chakma

On behalf of Asia Indigenous Peoples’ Caucus

Mr. Chairperson, Excellences, indigenous sisters and brothers!

We wish to express our deep frustration and serious concern that indigenous peoples remain almost invisible in the final draft of the outcome document for the UN summit to adopt the post-2015 development agenda containing the 17 Sustainable Development Goals and 169 targets for the post- 2015 Development Agenda. This has happened, despite the sustained and active engagement of the Indigenous Peoples Major Group (IPMG) in the Post- 2015 Sustainable Development Agenda process. This is contrary to the aim of this development process to “LEAVE NO ONE BEHIND”. Twenty –five years after world leaders committed to improve the well-being of the world’s poorest, most deprived, oppressed and exploited, indigenous peoples still remain as one of the worlds poorest, and at the lowest rank in almost all of the development indicators. Indigenous peoples comprise 5 % of the global population but 15% of the poorest. 2/3 of this, which is more than 250 million is in the Asia- Pacific region. WE HAVE BEEN LEFT BEHIND.

It is with bigger disappointment that our contributions to and roles in achieving sustainable development which were recognized in the 1992 World Conference on Environment and Development has been completely ignored, and that we are only mentioned in The new Agenda as part of vulnerable groups that need empowerment [para 22] that are also entitled to quality education at all levels [para 23]. Corollary to these, we are included only under two goals as part of small food-producers whose agricultural productivity and incomes are aimed to be doubled by 2030, and targeted for the elimination of gender disparities in education and ensure equal access to all levels of education and vocational training by 2030.

In the Rio+20, the outcome document “The Future We Want,” paragraph 49, recognizes: “the importance of the participation of indigenous peoples in the achievement of sustainable development” and “the importance of the United Nations Declaration on the Rights of Indigenous Peoples in the context of global, regional, national and sub-national implementation of sustainable development strategies.” In the World Conference on Indigenous Peoples (WCIP), an action oriented outcome document aimed at implementing the principles set forth in the UN Declaration on the Rights of Indigenous Peoples, affirmed that: “indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development.” (Para. 33) The WCIP also committed to “giving due consideration to all the rights of indigenous peoples in the elaboration of the post-2015 development agenda.” (Para.37)

We are not inherently vulnerable as we have nurtured harsh environments as our homelands. We have governed and developed our territories by ourselves for centuries by using our resources prudently and not taking more than what is necessary to be able to survive. The non-recognition of our existence, our identity and our rights by nation-States is what is making us vulnerable, poor, and at the bottom of the development ladder. Under many national laws, our territories are controlled by the State without recognition of our prior rights, denial our right to full and effective participation in decision-making in all matters that affect us, including our right to free, prior and informed consent.

The 17 Goals and targets are now formulated and the final Declaration will be adopted by the UN General Assembly in September this year. We wish to convey our views, concerns and to ensure that WE ARE NOT LEFT BEHIND.

1. While the draft Declaration includes reference to full respect for international human rights treaties and other instruments, there is no particular reference or any of the collective rights of indigenous peoples as enshrined in the UN Declaration on the Rights of Indigenous Peoples. In particular, the key recommendation of indigenous peoples in line with the UNDRIP and the WCIP outcome document for the respect and protection of our right to land, territories and resources including to free prior and informed consent (FPIC) as critical for indigenous peoples’ collective survival and development is must be included in the Declaration and targets. This can be enhanced further with the mention of the UNDRIP as part of the international instruments on which the new Agenda is grounded.

2. Disaggregation of data based on ethnicity/indigenous status needs to be included in relevant indicators across the targets of the 17 Goals of the SDG in the Sustainable Development Goals and targets.

3. For States to fulfill their commitment made in the Outcome Document of the WCIP to work with indigenous peoples to come up with their national action plans for the implementation of the UNDRIP and “to disaggregate data, as appropriate, or conduct surveys and to utilizing holistic indicators of indigenous peoples’ well-being to address the situation and needs of indigenous peoples and individuals” [Para 10].

4. For UN agencies, to develop their System-wide Action Plan with the full and effective participation of indigenous peoples by instituting mechanisms for regular consultation at all levels including designating a focal person on indigenous peoples among country teams, adopting policies in line with the UNDRIP and develop targeted programmes in line with the Outcome Document of the WCIP.

Thank you Mr. Chair!

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Expert Mechanism on the Rights of Indigenous Peoples

Eighth session

20-24 July 2015

Agenda Item 7
: Study and advice on the promotion and protection of the rights of indigenous peoples with respect to their cultural heritage

Statement of Tebtebba Foundation, Inc.

Delivered by Jennifer Tauli Corpuz

Thank you Mr Chairperson,

My organization would like to thank the Expert Mechanism for its study and for the advice provided on the promotion and protection of the rights of indigenous peoples with respect to their cultural heritage (A/HRC/EMRIP/2015/2). We believe that the study and advice can provide valuable guidance for States, international organizations, indigenous peoples and cultural institutions in their efforts to protect indigenous peoples’ cultural heritage. The study rightly highlights the holistic and inter-generational nature of cultural heritage and emphasizes that safeguarding and development of cultures of indigenous peoples require the protection of their lands, territories and resources, as well as free, prior and informed consent. However, we believe that the portions of the study focusing on intangible cultural heritage, such as on traditional knowledge and traditional cultural expressions can be further enriched.

We would recall that, apart from UNESCO, the World Intellectual Property Organization (WIPO), Convention on Biological Diversity (CBD), and the Nagoya Protocol have work that focus specifically on traditional knowledge. While these bodies have made important contributions to the protection of traditional knowledge, much more needs to be done. We welcome the acceptance by the Conference of the Parties of the CBD of the use of the appropriate terminology “indigenous peoples and local communities” rather than the outdated “indigenous and local communities” in all its future documents. We urge member states of WIPO and UNESCO to likewise definitively adopt the appropriate terminology of “indigenous peoples” in all its documents and future treaties and international instruments and standard setting activities. Putting indigenous peoples under the category of “vulnerable” or “marginalized” groups is unacceptable, and would have the effect of nullifying the gains of indigenous peoples in international protection of their rights in the past 30 years.

The Expert Mechanism is uniquely placed to provide advice to other UN bodies on how their mandates relate to human rights in general, and to indigenous peoples rights in particular. Indigenous peoples’ representatives that engage in the work of UNESCO, WIPO, the CBD, and the Nagoya Protocol would welcome continued and active engagement of the EMRIP with those UN bodies to highlight the human rights implication of their work and provide advice on how they can effectively protect and promote indigenous peoples’ rights. We urge UNESCO to adopt its indigenous peoples policy soon, in line with the UNDRIP, so that implementation of the policy can begin, with the full and effective participation of indigenous peoples. For indigenous peoples of Asia, it will be crucial for the UNESCO policy to contain a working definition of indigenous peoples, as well as country technical notes, so that governments reluctant to use the term indigenous peoples can still protect indigenous peoples’ rights, even when they are called by another name, such as hill tribes or ethnic minorities.

Indigenous peoples representatives engaged in the work of WIPO were disappointed when the WIPO general assembly was unable to agree a work program for the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (IGC) this year. We call on the EMRIP to urge WIPO member states to renew the mandate of the IGC, to agree a robust work program, and to provide support for the full and effective participation of indigenous peoples in all aspects of the work of the IGC. In this regard, States should commit to contribute to the WIPO Voluntary Fund, which has been depleted for quite some time now.

As the IGC proceeds slowly with its work, biopiracy, misuse and misappropriation of indigenous peoples genetic resource and traditional knowledge continues at an accelerated pace. The massive push at international, regional and national levels to document existing traditional knowledge carry the risk of putting indigenous peoples’ intangible cultural heritage beyond their control. Therefore, there is an urgent need for a legally-binding international instrument to stop these injustices and rights violations. While existing draft documents of the IGC contain elements that would allow for the protection of indigenous peoples’ genetic resources, traditional knowledge, and traditional cultural expressions, wide divergence in positions remain among the various State groupings. We urge the EMRIP to play an active role in steering and guiding the work of WIPO and the IGC.

Thank you for your attention.

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Expert Mechanism on the Rights of Indigenous Peoples

Eighth session

20-24 July 2015

Item 4 of the provisional agenda 


Panel Discussion on indigenous peoples’ human rights in relation to business enterprises

Delivered by Jennifer Tauli Corpuz, Tebtebba Foundation

Thank you, Mr Chairperson.

The operation of extractive industries within indigenous peoples’ territories remains the most significant threat to the individual and collective human rights and, indeed, to the very survival of indigenous peoples. Violence, conflict, displacement, and extrajudicial killings of indigenous activists are rampant in indigenous communities where the are ongoing struggles against extractive industries and other large-scale corporate activities. In many cases, indigenous peoples do not have real access to effective remedies. Experience has shown that States are frequently complicit with corporations in these rights violations and are without tools to hold corporations accountable where needed.

For instance, out of the 238 victims of extrajudicial killings in the Philippines, from July 2010 to March 2015, there have been no convictions of perpetrators in killings of indigenous activists. This is despite the establishment of an inter-agency mechanism to pay special attention to such cases. Across Asia, indigenous peoples are not consulted by extractive industries seeking entry into their territories and do not have access to remedy for rights violations because they are not recognized as indigenous peoples by the States where they are found. Legal systems in Asia rarely recognize the right of indigenous peoples to participate in decision-making where they do not have State-recognized titles to their land and territories.

In this era where corporations have become so dominant that their role in the global economic system “extends beyond the capacities of any one national system to effectively regulate their operations”, innovative and global responses have to be developed. A global solution is required to address the “reality that for many communities, as well as States from all parts of the world, that corporations today have the ability under international trade and investment law to sue states when they pass laws that aim to improve human rights and environmental protections.” This was emphasized by the UN Special Rapporteur on the Rights of Indigenous Peoples in her keynote speech earlier this month at the First Session of the Intergovernmental Working Group on Elaborating a Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights.

The EMRIP, along with the other indigenous-specific UN mandates, are in a unique position to guide the development an international treaty on business and human rights so that it fully respects indigenous peoples’ rights. The advise contained in document A/HRC/21/55, the follow-up report on indigenous peoples and the right to participate in decision-making, with a focus on extractive industries, remains relevant.

We recall paragraph 8 of the report, which emphasizes that the right to participate in decision-making, including FPIC, is a right indivisible from and interrelated with other indigenous peoples’ rights, such as the right to self-determination and right to lands, territories and resources. For indigenous peoples of Asia, it is a crucial to emphasize that FPIC arises from the right of indigenous peoples to self-determination, and that the right of indigenous peoples to participate in decision-making in relation to extractive activities is not confined to situations where indigenous peoples have a State-recognized title to the lands, territories and resources on or near which the extractive activity is to take place.

We also recall paragraph 36 of the report, which recognizes that indigenous peoples’ rights to participate in decision-making in relation to extractive industries that affect them must not be understood as a trade-off for or exchangeable with indigenous peoples’ substantive rights to their lands, territories and resources. Rather, the procedural aspects of the right (such as consultation) exist to promote the substantive right (such as self-determination and underlying rights relating to lands, territories and resources). This must be a guiding principle that animates efforts to negotiate a binding treaty on business and human rights.

To again quote the UN Special Rapporteur on the Rights of Indigenous Peoples, an international legally binding instrument on business and human rights could contribute to redressing gaps and imbalances in the international legal order that undermine human rights, and could help victims of corporate human rights abuse access remedy. This process should not be seen as contradictory to ongoing efforts to implement the Guiding Principles on Business and Human Rights, which could be an interim measure while negotiations for a treaty are ongoing.

Presently, the ability of indigenous peoples affected by corporate human rights violations to access effective remedies is very weak. Such remedies do not even cut across all jurisdictions. Meanwhile, in many instances, corporate human rights violations touch upon the interests of more than one country’s jurisdiction. Thus, we agree with the Special Rapporteur that for the Intergovernmental Working Group to make real advances in providing access to effective remedies, the future legal instrument must clarify the extraterritorial obligations of states to ensure access to effective remedies within all states that are connected to the corporations in question.

In conclusion, we call on the EMRIP to continue to actively participate in and provide advice to the process of elaborating a legally binding instrument on business and human rights. Full and effective and direct indigenous participation in the process of negotiating at business and human rights treaty is likewise crucial, so we call on the Intergovernmental Working Group to enable and provide resources for such participation.

Thank you, Chair, for the opportunity to present this statement.