Expert Mechanism on the Rights of Indigenous Peoples

1. Office of the United Nations High Commissioner for Human Rights Expert Mechanism on the Rights of Indigenous Peoples

2. Outline • Background to the Expert Mechanism • Placement of the Expert Mechanism within the UN’s human rights system • Establishment of the Expert Mechanism, 2007 • Mandate of the Expert Mechanism: • Human Rights Council Resolution 6/36 (2007) • Composition of the Expert Mechanism • Sessions of the Expert Mechanism • Participation in the Expert Mechanism, including its annual sessions • Preparing a statement for presentation at the annual session

3. Outline continued • Role of the Office of the High Commissioner for Human Rights • Expert Mechanism Study on Education • Approach • Advice • Expert Mechanism Study on Participation • Approach • Good practices • Advice • Where to find further information

4. Background to the Expert Mechanism on the Rights of Indigenous Peoples • 1982: Working Group on Indigenous Populations (WGIP) • Under the Commission on Human Rights and Sub-Commission on the Protection and Promotion of Human Rights (Sub-Commission) • Composed of 5 members of the Sub-Commission • Mandate to review developments re the promotion and protection of indigenous peoples’ rights and to evolve international standards on indigenous peoples’ rights • Open participation, including indigenous peoples’ representatives • 1985: Drafting of the declaration began in the WGIP • 1993: WGIP draft of declaration finalised • 1994: • Sub-Commission approved the WGIP draft declaration • Draft declaration submitted to the Commission on Human Rights • 1995 - 2006: Commission on Human Rights established the Working Group on the draft declaration in 1995 • Indigenous peoples, states and others contribute to drafting the declaration during annual sessions of the Working Group on the draft declaration

5. Background continued • 2006: • Dissolution of the Commission on Human Rights (including subsidiary bodies such as the WGIP) and replacement with the Human Rights Council • Human Rights Council «institution building» began • Approval of Declaration at the Human Rights Council (June 2006) • 2007: • Agreement on the structure of the Human Rights Council and its subsidiary bodies • Expert Mechanism on the Rights of Indigenous Peoples established by the Human Rights Council • Adoption of the Declaration on the Rights of Indigenous Peoples in the General Assembly (Sept 2007)

6. Place within the UN human rights system ECOSOC General Assembly Human Rights Commission PFII Human Rights CouncilGA Resolution 60/251 03/04/06 GA resolution 63/161 VFIP mandate 29/06/06 GA adoption of the Declaration Special Rapporteur HRC – UN Declaration HRC Resolution 12/13 HRC Resolution9/7 Working Group on the Draft Declaration 13/09/07 Renewal of the SR Sept.2009 24/09/08 28/09/07 Sub-Commission Expert Mechanism on the Rights of Indigenous Peoples HRC Resolution 6/36 First session Resolution 6/16 Informal meeting 1-3/10/08 Working Group on Indigenous Populations 28/09/07 Second session 6-7/12/07 18/06/06 10-14/08/09 Institutional building(HRC Resolution 5/1) Third session 12-16 July 2010 14/12/07

7. Establishment of the Expert Mechanism • Negotiations 2006 and 2007 • Inside and outside the formal sessions of the Human Rights Council, during its institution building process • Indigenous peoples lobbied for the Expert Mechanism • Informal meeting preceeding the Human Rights Council’s adoption of the resolution establishing the Expert Mechanism • Mandate of the Expert Mechanism created under Human Rights Council Resolution 6/36 of December 2007

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

9. Mandate • (a) The thematic expertise will focus mainly on studies and research-based advice; • (b) The mechanism may suggest proposals to the Council for its consideration and approval, within the scope of its work as set out by the Council; • Expertise mainly through studies and research-based advice • Proposals – but must seek the approval of the Human Rights Council • Human Rights Council requests: • Education (2008): Res 9/7 • Right to participate in decisionmaking (2009 – 2010): Res 12/13 • Cultures and languages (2011): Res 18/8

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

11. Composition Human Rights Council Resolution 6/36 (2007) • 3. Further decides that the expertmechanismshallconsist of fiveindependentexperts • 4. Stronglyrecommendsthat, in the selection and appointmentprocess, the Council givedueregard to experts of indigenousorigin; • 6. Also decides that the members of the expertmechanismshallservefor a three-yearperiod and may be re-electedforoneadditionalperiod; Experts (2008-2011) John Henriksen (Norway) JannieLasimbang (Malaysia) José MencioMolintas (Philippines) José Carlos Morales Morales (Costa Rica) Catherine Odimba (Democratic Republic of Congo) 2011 Vital Bambanze (Burundi): 1 yr (Chair 2011) Anastasia Chukhman (Russian Fed): 2 yrs JannieLasimbang (Malaysia): 3 yrs Wilton Littlechild (Canada): 3 yrs José Carlos Morales Morales (Costa Rica): 2 yrs

13. Coordination 5. Decides, in order for the expert mechanism to enhance cooperation and avoid duplicating the work of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people and the Permanent Forum, that it shall invite the Special Rapporteur and a member of the Permanent Forum to attend and contribute to its annual meeting; • Close coordination between indigenous mandates and respective secretariats • Cooperation includes: • attendance at respective sessions (eg EM and SR at the PFII and vice versa) • Annual coordination meetings • Declaration on the Rights of Indigenous Peoples is a common framework, under article 42 of the Declaration

14. Distinctions between the Indigenous Mandates • Expert Mechanism • Thematicadvice to the Human Rights Council • Special Rapporteur on the rights of indigenous peoples • Examines obstacles to the protection of indigenous peoples’ rights, gathers information and communications, formulatesrecommendations and workswithother mandates such as the Expert Mechanism • Conducts country visits, responds to communications and undertakesthematicstudies • Permanent Forum on Indigenous Issues • Advises the Economicand Social Council, raisesawareness and promotesintegration and coordination of activities on indigenous issues within the UN system and prepares and disseminates information on indigenous issues

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

16. Participation in theExpertMechanism

17. Participation Resolution 6/36: shallbe open to the participation, as observers, of States, UnitedNationsmechanisms, bodies and specialized agencies, funds and programmes, intergovernmentalorganizations, regional organizations and mechanisms in the field of human rights, national human rightsinstitutions and otherrelevantnationalbodies, academics and expertsonindigenousissues, non-governmentalorganizations in consultative status with the Economic and Social Council; the meetingshallalso be open to indigenouspeoples’ organizations and non-governmentalorganizations, whoseaims and purposes are in conformitywith the spirit, purposes and principles of the Charter of the UnitedNations, basedonarrangements, includingEconomic and Social Council resolution 1996/31 of 25 July 1996, and practicesobservedby the Commissionon Human Rights, throughan open and transparentaccreditationprocedure in accordancewith the rules of procedure of the Human Rights Council, whichwillprovidefor the timelyinformationonparticipation and consultationwithStatesconcerned;

18. Participation • Accreditation procedure • Open • Internet-based • Available before the annual session on the Expert Mechanism’s website • Agenda items can include: current study, past studies, the Declaration on the Rights of Indigenous Peoples • Funding can be sought from the UN’s Voluntary Fund for Indigenous Populations: http://www.ohchr.org/EN/Issues/IPeoples/IPeoplesFund/Pages/IPeoplesFundIndex.aspx

19. Participation at the Expert Mechanism Present candidate(s) Participation in the Human Rights Council Attend EMRIP’s session EMRIP Oral contributions – raise issues Meeting with the Special Rapporteur –communication Send contributions to studies Meet with indigenous peoples and relevant actors

20. Guidance for Statements at the Expert Mechanism’s sessions Note the agenda item to which you would like to speak Sign up to speak on the agenda item Prepare written statement Make copies of statement (DoCIP usually provides copying services) for distribution by the secretariat Speak to the topic 5 minutes Be clear Speak slowly (as statement will be simultaneously translated) NB: The Expert Mechanism cannot address specific allegations of violations of indigenous peoples’ rights

21. Role of the OHCHR • The Office of the High Commissioner for Human Rights (OHCHR) • Is the secretariat of the Expert Mechanism • Provides logistical support • Provides substantive support • Holds expert workshops in relation to the Expert Mechanism’s studies • The High Commissioner for Human Rights • Usually opens the Expert Mechanism’s annual session

22. Expert Mechanism studies • Based on: • Research undertaken by experts • Submissions during sessions of the Expert Mechanism • Expert seminars • Contributions from: • States • Indigenous peoples – individuals and representatives of indigenous peoples • Academic institutions • National human rights institutions • Non-state actors

23. Education Study • Resolution 9/7: prepare a study on lessonslearned and challenges to achieve the implementation of the right of indigenous peoples to education • Structure of the study: • Human rights basedanalysis of the scope and content of the right to education; • Indigenous educationsystems and institutions; • Lessonslearned; • Challenges and measures to achieve the implementation of the right of indigenous peoples to education; and • The Expert Mechanism Advice No.1 on the right of indigenous peoples to education

24. Education Study Recognition of education as a basic human right – generally and specifically in relation to indigenous peoples: review of relevant human rights standards, including under the Declaration on the Rights of Indigenous Peoples Indigenous peoples’ education contributes to both individual and community development Education is an important means for the enjoyment, maintenance and respect of indigenous cultures, languages, traditions and traditional knowledge Form and substance of education have to be culturally appropriate and acceptable to indigenous peoples

25. Education Study • Education is an indispensible means of realising indigenous peoples’ right to self-determination • Indigenous education includes: • Traditional education or ways of learning and institutions • Integration of indigenous perspectives and language in mainstream education systems and institutions • Indigenous peoples have the right to establish and control their education systems and institutions

26. Education Study • Lessons learned: • Constitutional recognition of indigenous peoples and the adoption of related national laws and policies on education is considered a priority in the application of the right of indigenous peoples to education • The provision of resources and attaching a high priority to the education of indigenous peoples are of utmost importance

27. Education Study • Challenges and measuresinclude: • Lack of control over education initiatives for indigenous children • Lack of consultation on the development and implementation of educational services provided to indigenous peoples • Limited considerationgiven to autonomy and participation of indigenous peoples in the delivery of educational services • The imposition of mainstreameducation on indigenous children

28. Advice on the Rights of Indigenous Peoples to Education The right of indigenous peoples to education includes the right to provide and receive education through their traditional methods of teaching and learning, and the right to integrate their own perspectives, cultures, beliefs, values and languages in mainstream education systems and institutions The right to education for indigenous peoples is a holistic concept incorporating mental, physical, spiritual, cultural and environmental dimensions Governments are urged to attach importance to building understanding and respect for traditional methods of teaching and learning

29. Advice on the Rights of Indigenous Peoples to Education Indigenous peoples, in exercising their right to self-determination, have the right to education autonomy….Indigenous peoples should be regarded as having prepaid present and future financial allocations from the State, including allocations to education, by sharing their lands, territories and resources with others The right of indigenous peoples to educational autonomy includes the right to decide their own educational priorities and to participate effectively in the formulation, implementation and evaluation of education plans, programmes and services that may affect them, as well as the right to establish and control their own education systems and institutions, if they so choose

30. Advice on the Rights of Indigenous Peoples to Education The Expert Mechanism recommends that States identify specific challenges and possible measures to achieve the implementation of the right of indigenous peoples to education in their specific countries, in consultation and cooperation with indigenous peoples

31. Participation Study • Resolution 12/13 (2009): • To carry out a study on indigenous peoples and the right to participate in decisionmaking • To present a progress report at the Council’s 15th session (2010) • To present the final study to the 18th session (2011) • Resolution 15/7 (2010) • Welcomed the completion of the progress report • Requested the Expert Mechanism to giveexamples of good practices of indigenous peoples’ participation at differentlevels of decisionmaking • Final study finalised July 2011

32. Participation Study • Progress Report • International human rights framework • Internaldecision-makingprocesses and institutions of indigenous peoples • Participation in decisonmakingmechanismslinked to both State and non-State institutions and processesaffecting indigenous peoples • Final Report of the Study • Defining good practices • Good practices in relation to indigenous peoples’ internaldecision-makingprocesses and institutions • Good practices in relation to decisionmakingmechanismslinked to the State and relevant non-State institutions and processesaffecting indigenous peoples • Advice No 2 on indigenous peoples and the right to participate in decisionmaking

33. Participation Study: Progress Report The principle of participation in decisionmaking has a clearrelationshipwith the right of indigenous peoples to self-determination, including the right to autonomy or self-government, and the State obligation to consult indigenous peoples in mattersthatmay affect them, based on the principle of free, prior and informed consent.

34. Participation Study: Progress Report Examination of the human rights framework on the right to participate in decision making generally and specifically in relation to indigenous peoples, including under human rights treaties, ILO Convention No 169 on Indigenous and Tribal Peoples, the Declaration on the Rights of Indigenous Peoples and regional instruments and jurisprudence (eg Inter-American and African human rights systems) The right has collective and individual dimensions Requirements of consultation with and, in some cases, the consent of indigenous peoples under international standards

35. Participation Study: Progress Report Indigenous peoples have the right to make their own independent decisions through which they determine their own political status and pursue their economic, social and cultural development Self-determination means that the institutions of decision making should be devised to enable indigenous peoples to make decisions related to their internal and local affairs, and to participate collectively in external decision-making processes in accordance with relevant human rights standards

36. Participation Study: Progress Report • Free, prior and informed consent: • Consistent jurisprudence from treaties and from human rights treaty bodies cited • Internal decision-making processes of indigenous peoples: • Guided by traditional indigenous legal systems • Can include adjudication and dispute-resolution procedures • Pressures from influence of contemporary structures of decision-making • Details about indigenous parliaments and organisations, indigenous legal systems, the role of women in decision making

37. Participation Study: Progress Report • Transformation and challenges of indigenous governance • Forced adaptation of traditional decision-making • Failures to include indigenous women in decision making in some communities • Participation in «external» decision making processes • Sometimes indigenous peoples are in the minority, meaning the majority can outvote them • Sometimes special measures guarantee seats for indigenous in parliaments, sometimes not • Sometimes indigenous autonomous regions are recognised

38. Participation Report: Final Study • Approach to good practices • Based on the Declaration on the Rights of Indigenous Peoples • Difficult to define «good» • Expert Mechanism does not verify that all practices are objectively good in every respect. It only indicates that certain elements of certain practices appear to have positive aspects based on its research and submissions received

39. Participation Report: Final Study • Internal decision-making: good practices • Generally internal decision making facilitates the participation of indigenous peoples and individuals in public affairs in ways that are philosophically and culturally consistent with indigenous peoples’ understanding of governance • Include Kuna Yala Comarca, American Indian nations, Saami parliaments, Philippines indigenous consultative bodies, New Caledonia customary senate, Chittigong Hill Tracts dispute resolution procedures, Mexican constitutional recognition of indigenous forms of governance

40. Participation Report: Final Study • Participation in external decision-making processes • guaranteed representation of indigenous peoples in Parliaments • institutions permitting direct indigenous participation in governance • consultation with indigenous peoples on matters that affect them • shared governance with state bodies • examples of consultation and consent seeking of indigenous peoples • participation in regional and international forums and processes • enhanced participation of indigenous peoples in national human rights institutions

41. Advice No 2 on Participation in Decision Making Indigenous peoples’ right to participate in decision making is a substantive as well as a procedural right Consultations with indigenous peoples need to allow for the full expression of indigenous peoples’ views, in a timely manner and based on their full understanding of the issues involved, so that they may be able to affect the outcome and consensus may be achieved Consultations also need to be undertaken in good faith, mutual trust and transparency, allowing indigenous peoples sufficient time to engage their own decision-making processes and the objective should be to achieve agreement or consensus

42. Advice No 2 on Participation in Decision Making The duty to consult applies whenever a measure or decision specifically affecting indigenous peoples is being considered (for example, affecting their lands or livelihood) The duty also applies in situations where the State considers decisions or measures that potentially affect the wider society, but which affect indigenous peoples, and in particular in instances where decisions have a disproportionately significant effect on indigenous peoples Indigenous peoples have the right to develop and maintain their own decision making institutions and authority parallel to their right to participate in external decision making processes that affect them

43. Advice No 2 on Participation in Decision Making The duty of the State to obtain indigenous peoples’ free, prior and informed consent entitles indigenous peoples to effectively determine the outcome of decision-making that affects them, not merely a right to be involved in such processes Consent is a significant element of the decision-making process obtained through genuine consultation and participation

44. Advice No 2 on Participation in Decision Making Consent required in matters of fundamental importance for indigenous peoples’ rights, survival, dignity and well-being In assessing whether a matter is of importance to the indigenous peoples concerned, relevant factors include the perspective and priorities of the indigenous peoples concerned, the nature of the matter or proposed activity and its potential impact on the indigenous peoples concerned, taking into account, inter alia, the cumulative effects of previous encroachments or activities and the historical inequities faced by the indigenous peoples concerned

45. Advice No 2 on Participation in Decison Making «free» implies no coercion, intimidation or manipulation; «prior» implies that consent is obtained in advance of the activity associated with the decisions being made, and includes the time necessary to allow indigenous peoples to undertake their own decision-making processes; «informed» implies that indigenous peoples have been provided all information relating to the activity and that that information is objective, accurate and presented in a manner and form that is understandable to indigenous peoples; and «consent» implies that idnigenous peoples have agreed to the activity that is the subject of the relevant decision, which may also be subject to conditions

46. Resolution 18/8 (Sept 2011) Next study: cultures and languages Request to continue to build on previous studies, including on participation Undertake a questionnaire survey to seek the views of States on best practices regarding the possible appropriate measures and implementation strategies to attain the goals of the Declaration Discuss the World Conference on Indigenous Peoples to contribute the exploration of the modalities of the meeting, including indigenous peoples’ participation at the Conference and its preparatory process

47. Contribution to indigenous peoples’ rights Providing a better understanding of Declaration provisions (through studies and research based advice) Regular panels UPR Interactive dialogue Opportunities to engage with the Human Rights Council Coordination among indigenous peoples – strengthening the international movement Promotion of the UNDRIP EMRIP Coordination with the SR and PFII – meetings with the SR during the session to join efforts Providing a review of good practices and challenges for Declaration implementation

48. More information • Website of the Expert Mechanism: • http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/EMRIPIndex.aspx • Website of the OHCHR on indigenous peoples: • http://www2.ohchr.org/english/issues/indigenous/index.htm