Safeguarding Indigenous Peoples’ Rights
Compiled by Rowena Soriaga
1. What are the rights of indigenous peoples
The United Nations General Assembly in 2007 passed the UN Declaration on the Rights of Indigenous Peoples containing 46 articles upholding: 1
• Rights to life, integrity and security (Art. 7-10)
• Spiritual, linguistic, cultural, education rights (Art. 11-16)
Labor rights; right to development, subsistence and health; rights of women, children and disabled (Art. 17-24)
• Rights to lands, territories and resources (Art. 25-?30)
• Intellectual property rights; free, prior and informed consent (FPIC); treaty rights (Art. 31-37)
Another way of categorizing2 rights set out in the Declaration could be in terms of rights of indigenous peoples to:
• Cultural integrity: Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
• Self-governance: Indigenous peoples have the right to self-determination.
• Negotiate and seek redress: Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.
• Human security: Military activities shall not take place in the lands or territories of indigenous peoples.
• Sustainable and equitable development: States shall take effective measures to ensure that State-owned media duly reflect indigenous cultural diversity.
2. Why IP rights need safeguarding
Indigenous peoples’ rights need safeguarding because most social, economic and political systems all over the world have not accorded them their basic human rights. These systems impact on over 350 million indigenous peoples who:
• represent 75% of world’s diverse cultures
• cultivate 65% of crop varieties consumed worldwide
• occupy territories containing 80% of world’s biodiversity
• compose 5% of world population but 15% of world’s poor
• suffer from historical and present racism and discrimination
3. Asia-Pacific countries for & against UN Declaration
The 144 countries in favour include all ASEAN states and Timor-Leste; 5 South Asian countries (India, Maldives, Nepal, Pakistan, Sri Lanka); and 2 Central Asian countries (Afghanistan, Kazakhstan)
The 4 countries against are US, Canada, Australia, and New Zealand.
The 11 countries that abstained include Azerbaijan, Bangladesh, Bhutan, and Samoa.
The 34 countries absent include those from Central Asia (Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan) and the Pacific (Papua New Guinea, Fiji, Kiribati, Marshall Islands, Mauritania, Nauru, Palau, Solomon Islands, Tonga, Tuvalu, Vanuatu).
Right to Cultural Integrity: The T’boli Sikat School in Lake Sebu, Mindanao, Philippines teaches children in their first language (mother tongue) and integrates cultural practices in the curriculum.
4. Recent UN Developments 3
• UN signs Declaration on Indigenous Peoples’ Rights, Sep 2007
• UNDP RIPP reviews International Financial Institutions (ADB, WB, JBIC)
• UN Permanent Forum on Indigenous Issues holds sessions on lands, territories and resources (2007) and climate change mechanisms (2008)
• FAO coordinates Asia-Pacific Forestry Outlook Study 2020; includes study on IP rights
• UNPFII speaks at Climate Change Conference, Bali, Dec 2007
• FAO organizes Asia-Pacific Forestry Week, Hanoi, Apr 2008; highlights social session
5. Changes in ADB Safeguard Policy for IPs
The ADB Safeguard Policy for indigenous peoples (1998) is under review. The Nov 2007 draft includes changes in the:
• Operational definition of Indigenous Peoples
• Process for consultation with and participation by indigenous communities
• Integration with safeguard policies on environment and involuntary resettlement
Discrimination: Small-scale & low-impact swidden farming and timber extraction many indigenous peoples depend upon considered illegal in many Asian countries; it is easier for large-scale and high-impact logging, plantation and mining development projects to get legal rights.
6. Civil Society Concerns
Concerns of civil society groups such as the NGO Forum on ADB over draft policy stem from its weakened language as well as its limited use of the human rights-based approach e.g.:
• lack of reference to international agreements such as the UN Declaration on Indigenous Peoples and the UN Convention on Human Rights
• downgrading of indigenous peoples’ “free and prior informed consent” to “free and prior informed consultation and broad community support”
• unbalanced application of policy provisions
• limited accessibility of the grievance mechanism
Discrimination: Small-scale & low-impact swidden farming and timber extraction many indigenous peoples depend upon considered illegal in many Asian countries; it is easier for large-scale and high-impact logging, plantation and mining development projects to get legal rights.
7. What we can do
We need to encourage the ADB to use the human rights-based approach in articulating the working definition of indigenous peoples; policy elements; scope of applicability, operational processes; monitoring, evaluation and accountability.
In particular, we need to watch that the following features get incorporated to the new policy:
Policy elements
• Reference international agreements, esp. UN Declaration on IP Rights
• Ensure free, prior and informed consent (FPIC) of IPs
• Install participatory process of policy review and reform
• Influence policy reforms and decision-making by member country governments
Scope of applicability
• Apply safeguard policy on all ADB-supported activities
• Ensure free, prior and informed consent in any activity impacting on indigenous peoples
• Include indigenous peoples in bank-member country negotiations
Operational processes
• Assess social and environmental impacts prior to approval
• Ensure that impact studies consider particular impacts on IPs
• Do not resettle peoples without their free, prior and informed consent
• Disseminate information in a manner and form understandable by affected indigenous peoples
Monitoring, evaluation and accountability
Monitor and evaluate project impact on indigenous peoples during and after project implementation
• Establish mechanisms to deal with outstanding problems
• Install accountability measures and litigation for violations of own policies and guidelines
8. ADB Events to Watch in 2008
• April: ADB Consultations US, Europe, Japan
• 2nd qtr: Draft working paper to ADB Board
• stakeholder comments on working paper
• 3rd qtr: ADB meets on draft working paper
• working paper becomes restricted paper
• 4th qtr: ADB meets on final restricted paper
“The UN Declaration contains no new provisions of human rights. It affirms many rights contained in international human rights treaties but which have been denied to indigenous peoples.”
- Les Malezeer, Chair, Global Indigenous Peoples Caucus, Speech during UN General Assembly, 13 Sep 2007
1 UN Permanent Forum on Indigenous Issues
2 Asia Forest Network
3 as of Apr 2008