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HR/5468
26 April 2022
Twenty-first Session, 3rd & 4th Meetings (AM & PM)

Indigenous Peoples' Territories, Resources Still Being Seized, Exploited, Despite International Standards Guaranteeing Their Rights, Speakers Tell Permanent Forum

While international standards guarantee the rights of indigenous peoples to self-determination, territories and resources, these fundamental freedoms are trampled upon in the name of mining, logging, oil, gas exploration and even conservation deemed essential to national development, speakers told the Permanent Forum on Indigenous Issues today, laying out recommendations for transnational businesses to respect their traditional knowledge and inherent dignity.

More often than not, said Geoffrey Roth, Forum member from the United States, indigenous territories are seized, livelihoods are destroyed, and traditional knowledge, cultures and language are lost.  “Combined, this erodes social bonds and whole identities.”  

Mr. Roth, one of five Forum members presenting the findings of recent studies undertaken to understand and improve indigenous peoples’ participation in decisions affecting their lives, introduced the report “International Expert Group meeting on business, autonomy and the human rights principles of due diligence, including free, prior and informed consent” (document E/C.19/2022/6), which met from 6-10 December 2021.  

He stressed that the United Nations Declaration on the Rights of Indigenous Peoples is clear:  article 32 outlines that States must obtain the free and informed consent of indigenous peoples prior to the approval of any project affecting their lands or resources.  Article 4, meanwhile, states that indigenous peoples have the right to autonomy or self-governance in matters related to internal and local affairs.  He also pointed to the Guiding Principles on Business and Human Rights, which outline rights for indigenous peoples and roles for both States and businesses in ensuring corporate responsibility.

Stressing that appropriate legislation, effective enforcement and indigenous peoples’ participation are crucial to achieving a balance between profit and respect for human rights and the environment, he said the expert meeting offered insight into how indigenous peoples are affected by business operations:  Intellectual property law seldom recognizes their traditional knowledge or cultural expressions.  Too often, indigenous peoples are met with reprisals, intimidation, violent attacks and even murder.

Against this backdrop, indigenous peoples are expanding their businesses and asserting intellectual property rights on their traditional knowledge, he said, noting that panellists praised Guatemala for its efforts to legally recognize Mayan designs and textiles and South Africa for its agreement with the Khoi and San people over royalty rights for use of the Rooibos plant.  Benefit-sharing arrangements are being used in hydropower and geothermal projects in Asia, serving as other positive examples of self-determination and collective development.

Outlining recommendations, he urged States to regulate the activities of transnational corporations in international human rights law.  He called on States and businesses alike to obtain the free, prior and informed consent of indigenous peoples — considering them both stakeholders and rights bearers — address the drivers of attacks against indigenous human rights defenders and adopt a zero-tolerance approach to them in their operations, value chains and investments.

Hindou Oumarou Ibrahim, Forum member from Chad, introduced the study on “indigenous peoples and resource conflicts in the Sahel and the Congo Basin” (document E/C.19/2022/7), explaining that the Sahel includes Burkina Faso, Gambia, Guinea, Mali, Mauritania, Niger, Nigeria, Senegal, Chad and Cameroon, while the Congo Basin is shared by Burundi, Cameroon, Congo, Chad, Gabon, Central African Republic, Democratic Republic of the Congo and Rwanda.  Parts of Chad and Cameroon cross into both zones.  Indigenous peoples in these areas are livestock herders and hunter-gatherers.  Among them are the Batwa in the Great Lakes Region, the Yaka in north-west Congo and the Baka and Bagyele people in Cameroon, who are called pygmies and live in the tropical forests.  Herder peoples include the Tuareg and the Mbororo people of Central Africa, the Congo Basin and the Sahel.

She said these communities live in harmony with their environments and have developed economic and cultural lives around the goods and services derived from them.  However, conflicts have emerged in the Sahel over access to drinking water and water for agricultural use — a result of climate change.  She pointed to the 90 per cent water loss of Lake Chad between 1960 and 2020 in this regard.  Alongside this reality, agricultural drought has led to desertification and a lack of arable land, while agricultural development has destroyed other lands.  Climate change also fosters internal and external migration, which becomes a source of conflict.  In the Congo Basin, for example, laws protecting areas for hunter-gatherers were enacted without considering people’s cultural and social realities.

Next, Silje Karine Muotka, President of the Sámi Parliament of Norway, explained the situation of indigenous peoples of the Arctic, for whom “the green shift is taking place as green colonization”.  Governments, industries and businesses have a long way to go when it comes to respecting indigenous peoples’ rights to existence and self-determination.  She pointed to the Fosen case on the Norwegian side of her homeland, Sápmi, which is now home to the Roan and Storheia wind farms that were built without the free, prior and informed consent of the Sámi reindeer herders or their representative institution, the Sámi Parliament in Norway.  Construction started in 2016, and by 2019, 151 turbines were producing electricity, covering 64 square kilometres of land, replete with 132 kilometres of roads, electrical substations and power lines.

She said Sámi reindeer herders moved the case through the court system until the Supreme Court’s Grand Chamber unanimously ruled in October 2021 that the licenses issued to Fosen Vind and Roan Vind by the Ministry of Petroleum and Energy are invalid, as they violate the herders’ rights to enjoy their own culture, according to article 27 of the International Covenant on Civil and Political Rights.  The expropriation of their property rights was also ruled invalid.  

“The Sør-Fosen sijte and Nord-Fosen siida won the case,” she said.  However, the plants continue to produce.  Norway has not taken action to ensure that these violations will end nor told the Sámi people how they will work with them to ensure that herders enjoy their culture in this area.  The Sámi Parliament has asked Fosen Vind and Roan Vind, as well as the owners of these companies, to comply with both Norwegian law and human rights and at the same time respect their own company ethics standards — “so far, without results,” she said.  “I am asking for justice.”

Darío José Mejía Montalvo, Forum member from Colombia and Permanent Forum Chair, presented a study on “the rights of indigenous peoples in relation to the global energy mix” (document E/C.19/2022/9), stressing that for indigenous peoples, the distinction between energy, life and spirituality does not exist.  “Our knowledge has not been taken into account,” he said.  The current energy matrix reproduces colonialist models, leading to injustices against indigenous peoples at political, ecological and epistemological levels because authorities do not recognize their form of government. 

“There is a lack of understanding about our land on the part of authorities when they take decisions,” he said.  While they are focused on roads, hydroelectric stations and parking spots, indigenous peoples lack access to their basic needs, such as fishing.  There has been no analysis of the damage that has been done.  “We have to insist on [the] effective participation of indigenous peoples in energy transfers globally as well as within States,” he stressed, as the consequences of making these decisions “behind our backs” is so great it threatens survival.

Nanaia Mahuta, Minister for Foreign Affairs and Local Government of New Zealand, in an online presentation, underscored the importance of forging partnerships among indigenous peoples, civil society, Government and the private sector.  She pointed to the Treaty of Waitangi, New Zealand’s founding document, and the partnership between the Government and the Māori people in this regard, stressing that “we need governance to be exercised in way that enables the self-determination of everyone, including Māori”.

She went on to say that the framework uses the Treaty to shape systems that respect Māori traditional knowledge.  She also pointed to the inclusion of an indigenous chapter in the free trade agreement between New Zealand and the United Kingdom, stressing that the Government also stands ready to amplify the voices of indigenous peoples across the United Nations system.

In the ensuing discussion, representatives of indigenous peoples, Governments and United Nations entities continued their dialogue along the theme of “Indigenous peoples, business, autonomy and the human rights principles of due diligence, including free, prior and informed consent”, with many speakers describing harmful business practice.

The representative of the Sámi Parliament in Finland agreed that indigenous peoples bear the heavy environmental cost of extractive projects while reaping very few of the benefits.  Political mobilization was essential to their grasping of any opportunities.  In the European Arctic — traditional Sámi territory — “the colonial school still rules” in the destructive mindset of industry, while the switch to a green economy has increased pressures on the land.  He pointed out that Europe’s biggest ore and copper mine is found in Sámi territory in Sweden, and that Sámi territory there and in Finland is the main gold supplier in Europe.

“We cannot afford to lose any more of our lands,” said the representative of the Sámi Council.  For mining companies to make a reservation to an area of Sámi land is a mere formality in Finland’s legislation.  For herders, receiving news that a reservation has been made on their lands is “like receiving a death threat:  it means the future of your way of life is being questioned.”   The Fosen case is emblematic of the urgent need to respect indigenous peoples’ rights from the outset of any project on their territories.

Many participants also drew attention to the decades of injustices against indigenous communities, including the speaker from the Assembly of First Nations, who said reconciliation with Canada has not been smooth or easy.  She pointed to the recent recovery of children from unmarked graves on Turtle Island as paving the way for greater recognition.  The key instrument on the road to truth and reconciliation is the United Nations Declaration on the Rights of Indigenous Peoples.  Canada’s Indian Act is in direct opposition to the Declaration.  “This is irreconcilable and must be resolved,” she insisted.

The speaker from Asian Indigenous Peoples Pact said the 411 indigenous peoples estimated to live in Asia face political, cultural and social marginalization, as well as routine violation of their rights, while the speaker from the National Organization of Andean and Amazonian Indigenous Women urged the Forum to call on Peru to align its laws with International Labour Organization (ILO) Convention No. 169 because “we are consulted after our rights have been violated”.  Peru’s agreements and laws do not respect indigenous peoples’ right to consent, and authorities do not respect the findings of environmental impact studies, she stressed.

In that vein, several described the imbalanced power dynamics of working with States.  The speaker from the Association of Indigenous Fulani Women of Chad similarly argued that indigenous peoples’ marginalization in Chad is due to the political and legal precarity of their rights.  While they have a large part of the pastoral economy, their involvement in the commercialization of livestock is not seen in any statistical results.  Their productivity is informal, due to public policies that limit their rights, and their nomadic existence excludes them from sharing in natural resources.  She called on administrative authorities and traditional leaders to lead training programmes in conflict resolution and advocated for better national development planning.

The speaker from the Association of Indigenous Peoples of the North, Siberia and Far East of the Russian Federation (RIPON) said that, although there is a tradition of self-governance within their communities, their communities must be confirmed by the Government.  RIPON is represented in the Council to the President of the Russian Federation and has proposed various initiatives.  A month ago, evaluation was conducted of its authority over territories and its special status.  “However, we cannot say we are pleased with the contents of [the] draft law,” he said, noting that 30 of its organizations were blocked from traditional land use, equating to 10 per cent of the country’s entire land mass.

The speaker from the Congress of Aboriginal People said Canada’s Indian Act has led to terrible outcomes for Aboriginal people in the form of ill health, food insecurity, poverty, unsafe housing and homelessness.  “We have been excluded from discussions that affect us and are often forced to go to court to uphold our rights,” he said.  While Canada’s Prime Minister said he would fight for their rights and recognition, “he will not acknowledge us, nor will he accept any invitation to talk”.  The Aboriginal people should not have to wait any longer.

In a “fervent appeal for redress”, the speaker from the Global Naga Forum said the struggle for and absence of self-determination has made economic development extremely difficult for the Naga people.  He appealed to the Expert Mechanism and the Special Rapporteur to pressure India into repealing the Special Armed Forces Act, setting a timeline for the demilitarization of the Naga homeland and negotiating a peace accord in good faith.

Numerous Governments took the floor to outline their achievements, with Burundi’s representative stressing that his country’s Constitution’s recognition of the Batwa as an ethnic group opens opportunities for their claims of being full-fledged Burundians.  The Constitution accords Batwa seats in Parliament and the Senate, she said, noting that one of every 15 ministers comes from the community, including herself.  She also cited the building of homes for Batwa families, along with free primary education and the distribution of school kits to Batwa children.

Others pointed to solid legislative gains.  The representative of Guatemala described the “996 law”, which is aligned with ILO Convention No. 169.  He cited the example of the Phoenix mining company, which suspended its work in 2021 to conduct consultations with indigenous peoples through an inter-institutional body.  Consensus was reached to continue the operations.  Further, in 2017, the Constitutional Court approved a template for such consultations and until there is legislation, this is what will be applied.

The representative of Ecuador said that the 2008 Constitution recognizes his country as a pluri-national and cultural State and outlines the need for a participatory dialogue with indigenous peoples for the use of natural resources.  He proposed that gross domestic product (GDP) of all States should measure the collective well-being of the environment.  He also called for diversifying human and productive capital while preventing cultural loss.

The representative of Finland, also speaking for Denmark, Iceland, Norway and Sweden, pointed to a road map for increasing recognition of indigenous peoples in corporate commitments to human rights.  A considerable number of business initiatives do include the respect for the rights of indigenous people.

The representative of South Africa said her country is engaged in a process to elaborate a legally binding instrument for transnational corporations to adhere to human rights, which “will go a long way” in providing effective legal remedies for the victims of grave rights violations by these entities.  At the core of such abuse is a “total disregard for the free, prior and informed consent of indigenous peoples”, she said.

Several delegates touted their countries’ adherence to ILO Convention No. 169, including Nepal’s representative, who noted that 123 languages are spoken as a mother tongue.  Textbooks are published in 24 languages and 69 mother tongues have been used in primary schools.  Nepal also provides monthly cash allowances to 10 endangered communities. 

Germany’s representative announced that her country has ratified ILO Convention No. 169, which will come into force in 2022.  Along similar lines, Spain’s representative highlighted his country’s “Defenders at Risk” programme, which hosts indigenous and Afro-descendent leaders.

Still other representatives took issue with the characterizations of their countries in Forum reports, with Indonesia’s delegate emphasizing that the concept of indigenous people does not apply to her country, as its entire population remains unchanged from colonial times.  Indonesia is a multicultural, multi-ethnic nation that does not discriminate among its peoples.  Multi-stakeholder consultations have been carried out during enactment of various laws and there is special autonomy in several provinces.  She expressed regret that some have inserted armed separatist agendas against her country into the Forum’s discussions.

The representative of Ethiopia objected to the report’s claim that Ethiopia removed indigenous peoples from land without their prior consent or consultation during plans for a hydroelectric power plant.  “Every design and implementation of development projects has been undertaken with necessary precautions and with relevant stakeholders,” she explained.  The concept of indigenous people is ethnologically wrong.  The classification does not apply to Ethiopia, as all Ethiopians are inhabitants of the ancient land.

China’s representative blamed centuries of colonial rule for the plundering of indigenous land and resources.  She voiced concern that indigenous peoples in some Western countries face forcible eviction and contamination of their water from nuclear waste.  She urged these countries to implement the Declaration and respect the principle of free, prior and informed consent.

The representative of the Russian Federation said his country is home to 193 peoples and that the Constitution accords a special legal category to 47 peoples living in 34 regions.  Indigenous peoples face threats of a cross-border nature, he said, citing the “unused potential” of 2,000 indigenous economic areas and the Duma’s consideration of a draft law to improve them.

Representatives of United Nations entities also offered their perspectives, with the official from the International Labour Organization noting that if human rights are to be respected in business activities, States must put in place the requisite legislation and institutional frameworks.  In most cases, however, this is not done.  ILO is assisting States in building the legal and institutional frameworks needed to uphold the rights enshrined in Convention No. 169.

The representative of the International Fund for Agricultural Development (IFAD) called for action from Governments, intergovernmental organizations and the private sector to apply the principle of free, prior and informed consent.  IFAD has learned that dialogue and mutual recognition “go a long way” to improve the effectiveness of investments.  She described updates to IFAD’s engagement with indigenous peoples and underscored the agency’s commitment to finance programmes that build on the identity, culture and knowledge of indigenous peoples

The representative of the United Nations Population Fund (UNFPA) focused on bodily autonomy for indigenous women in deciding on the number, spacing and timing of their children.  Indigenous women have been denied such choices, and in the most extreme cases, have been forced into sterilization under strict family planning programmes.

Anne Nuorgam, Forum member from Finland, said Finland has been slow to follow up on the decisions taken by its Supreme Court on cases involving indigenous peoples.  She asked Ms. Muotka, President of the Sámi Parliament of Norway, about the reasons for the slow follow up, to which Ms. Muotka replied that it is of utmost importance that Nordic countries [Denmark, Finland, Iceland, Norway and Sweden] follow up on high court rulings.  “Ongoing human rights violations must come to an end,” she said, stressing that it is a joint venture to ensure that human rights are balanced according to international law.  “I will not rest until the ongoing violations come to an end,” she stated.

Ms. Nuorgam later presented a discussion paper on “Indigenous peoples, autonomy and self-governance:  outcomes of the regional dialogues”.  She said the dialogues were organized to support the development of guiding principles and included the Inter-Agency Support Group on Indigenous Peoples’ Issues.  They aimed to identify best practices related to autonomy and the potential scope for guiding principles on the matter.

Representatives of the following organizations also took part in the discussions:  Chirapaq; Ngaati Wairere; Jamii Asilia Centre; National Coordinator of Indigenous Women — Mexico; Fund for the Development of Indigenous Peoples of Latin America and the Caribbean; Treaty Number Eight Territory; Nation of Hawai’i; Regional Association of Indigenous People of the North of the Kraznoyansk; National Congress for American Indians; Nunatu-Kavut Community Council; Rochun; Global Indigenous Youth Caucus; Amara Multidisciplinary Studies Centre; Entrepreneurship Indigenous Federation and Local Mexican Communities; Tsilhhot’in National Government; International Indigenous Committee of Russia; Native American Rights Fund; Arramat Project for Biodiversity Conservation; and Congress Mondial Amazigh.

Representatives of Guyana, Venezuela, Mexico, United States, Australia, Paraguay and Ukraine addressed the Forum in an observer capacity, as did speakers from the European Union and the Holy See.

Permanent Forum members from Australia and Nepal also made interventions.

The Permanent Forum on Indigenous Issues will reconvene at 3 p.m. on Wednesday, 27 April, to continue its twenty-first session.

For information media. Not an official record.