Statement at the 12th Session of the United Nations Expert Mechanism on the Rights of Indigenous Peoples, Geneva, 18 July 2019

Ms Victoria Tauli-Corpuz, Special Rapporteur on the Rights of Indigenous Peoples
Geneva, 18 July 2019

Item 8. Dialogue with Special Rapporteur on the Rights of Indigenous Peoples, the Chair of the UNPFII, the Board of Trustees of the UN Voluntary Fund for Indigenous Peoples, and members of the Committee on the Elimination of Discrimination against Women and the Human Rights Committee on UNDRIP implementation

Chair of the Expert Mechanism on the Rights of Indigenous Peoples,
Chair of the UNPFII,
Board of Trustees of the UN Voluntary Fund,
Distinguished Members of the CEDAW and the Human Rights Committee,
Distinguished Members of the Expert Mechanism,
Indigenous representatives, Excellences, ladies and gentlemen,

It is an honour for me to participate in this interactive dialogue on the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). I want to thank the Expert Mechanism on the Rights of Indigenous Peoples for their invitation to this dialogue, which provides a good example of the ongoing coordination among the human rights mechanisms.

I would also like to stress the importance of the participation of the distinguished Members of the Human Rights Committee and CEDAW in this dialogue. I firmly believe that the role of the treaty bodies in the promotion and implementation of the Declaration at the country level is crucial. As I mentioned in my report to the General Assembly in 2017, the growing jurisprudence emanating from the United Nations treaty bodies can significantly assist in strengthening the understanding and realization of the rights contained in the Declaration.¹ Increasingly, United Nations human rights treaty bodies have referred to the Declaration as an authoritative source on State obligations regarding indigenous peoples’ rights in their assessments of compliance under the various treaties. Their observations and recommendations provide valuable insight into the implementation of the Declaration in specific contexts and situations. Their work is also valuable for the work of my mandate, as I am requested to consider their recommendations, observations and conclusions, which I routinely do when examining thematic aspects or country situations within my mandate.

Considering the relevance of the work of the treaty bodies in terms of incorporating the provisions and spirit of the Declaration within their monitoring of compliance with the fundamental human rights treaties, I have recommended the increased engagement of indigenous peoples in their work and procedures. I am glad the Voluntary Fund is currently supporting such interaction.  The participation of Members of the Treaty Bodies in interactive dialogues such as this is a good practice that should be promoted.

Ladies and gentlemen,

As you all know, my mandate is tasked with the promotion of the Declaration, and I consider this human rights instrument to be the normative framework for all my work. ²   

In my intervention today I would like to briefly refer to three issues reflected in UNDRIP which have been the object of the work of EMRIP and myself during this past year: the questions of recognition, remedy and reconciliation; indigenous justice systems; and the right of indigenous peoples to self-determination. As all human rights, these issues are intimately connected. Thus, access to justice is a key element for reparation, while the realization of indigenous peoples’ right to self-determination depends on adequate recognition of indigenous peoples as subject of collective and individual rights, which in turn is the only way to achieve redress and full reconciliation.

I have repeatedly addressed the issue of the lack of recognition of indigenous peoples as an ongoing obstacle to the full realization of their rights.³ I have expressed my concern that, by failing to recognize certain groups as indigenous peoples, States and other actors avoid applying the international standards and protection mechanisms that are most appropriate to address the kinds of human rights concerns that these groups face in common with groups which are generally identified as indigenous around the world. Adequate recognition of indigenous peoples as such is thus a fundamental first step for the realization of their rights.

Indigenous peoples around the world have suffered in the past gross and systematic violations of their human rights, and those violations have ongoing consequences in the present day that continue to affect their survival and well-being. Throughout the Declaration there are calls for “effective mechanisms” for redress in connection with a range of rights. Indeed, the Declaration in its entirety can be understood as fundamentally a “remedial” instrument that aims at repairing the effects of the historical denial of the right to self-determination and other basic human rights affirmed in international instruments of general applicability.⁴   In my view, the unfulfilled redress for historical and ongoing wrongs is the main obstacle for reconciliation. Without adequate truth and remedy processes, it will be difficult to ensure sustainable relationships between indigenous peoples and the States within which they live based on trust, mutual respect and partnership.

True reconciliation can only be achieved through the provision of remedy and redress for indigenous peoples. Reparation is a conditio sine qua non for reconciliation, as pointed out in EMRIP’s preliminary report. The Declaration specifically requires it for inter alia the dispossession of their land, territories and natural resources; for any form of forced assimilation or integration; for the misappropriation of cultural, intellectual, religious or spiritual property; for the deprivation of their means of subsistence, as well as for the development and utilization or exploitation of their mineral, water or other resources. An essential approach for redress is the consideration of the collective nature of the impacts of past and present violations of the rights of indigenous peoples, and therefore the incorporation of adequate collective reparation measures.

Another key element is the need to take into account indigenous peoples’ own concepts of recognition, reparation and reconciliation. On this issue, as on many others, insufficient attention has been devoted to the interpretation indigenous peoples themselves give to these rights, and to their own initiatives to realize them. Indigenous peoples’ interpretation should be the starting point for the development and adoption of the legal, policy and administrative measures required for their implementation. It is important to consider that remedy and redress are not only legal concepts for indigenous peoples, but issues linked to the main aspects of their history and their existence as differentiated societies.

In this sense, I would like to stress the need for intercultural dialogue to develop common understandings and joint working frameworks to implement recognition, reparation and reconciliation. For this dialogue to be fruitful, mutual trust has to be built. There is a need for a change in the approach of States to indigenous claims. They should be considered as justice and human rights issues that, adequately solved, would result in benefits for the country as whole. The fulfilment of indigenous peoples’ rights should not be portrayed as a cost. This position estranges indigenous peoples from the State and the country, while promoting the notion within the larger society that indigenous peoples are requesting unwarranted privileges. Moreover, it is not conducive to the partnership emphasised by UNDRIP. It is UNDRIP itself, as a consensus framework, which provides the best basis to start or continue an intercultural dialogue on how to implement indigenous peoples’ rights in an environment of reciprocal cooperation.

As discussed in EMRIP’s preliminary report, some steps have been taken towards recognition and remedy, including the adoption of legal and policy measures or the issuance of public apologies. However, the clearest manifestation that redress for indigenous peoples is still pending is the continuing lack of access and security over their traditional lands, territories and natural resources. In this regard, Article 28 of the Declaration states that “indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.” Significant progress is needed in the realization of indigenous peoples’ collective rights over their lands, territories and natural resources as they are the basis for the exercise of their fundamental human rights.

Meaningful reconciliation must also include steps to ensure the non-recurrence of violations. This is essential for building trust and restoring confidence in the State. Indeed, it is difficult to envision true healing by indigenous peoples in an environment in which violations continue to occur. As observed in my report to the Human Rights Council last year on criminalization and violence against indigenous peoples, abuses are still happening across the globe.⁵ To end these violations, it is essential to address their underlying causes, which are very often connected to the historic dispossession and discrimination suffered by indigenous peoples. A framework of recognition, redress and reconciliation needs to be based on ensuring the non-repetition of human rights violations.

Justice is an essential component of truth, reparation and reconciliation processes. I will devote my thematic report to the Human Rights Council this year to the issue of indigenous peoples and justice, considering the two main aspects of this topic: recognition of indigenous justice systems and access to justice for indigenous peoples, including in the context of post-conflict and transitional justice. 

The Declaration contains clear and relevant provisions on those two aspects. Thus, Articles 5 and 34 assert the right of indigenous peoples to maintain and strengthen their political, legal, economic, social and cultural institutions and to promote, develop and maintain their institutional structures, including their juridical systems or customs in accordance with international human rights standards. The Declaration furthermore affirms the right of indigenous peoples to ‘access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights’, which should give due consideration ‘to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.’⁶   My report contains recommendations on how legal pluralism can strengthen the coordination and harmonisation between indigenous justice mechanisms and the ordinary justice system.

EMRIP studies on access to justice have underlined the importance of recognition of indigenous justice systems, the role of restorative justice, and the link between access to justice and truth and reconciliation.⁷  My mandate has also devoted attention to country specific situations in this regard through mission reports and communications, including to ongoing processes in Canada, the role that indigenous justice has played in Timor-Leste’s transition to independence, steps ahead and setbacks in Guatemala linked to redress for the gross human rights violations committed against indigenous peoples during the armed conflict,  and the implementation of Constitutional commitments in Ecuador, to name but a few.

I hope my report can contribute to EMRIP’s and treaty bodies’ consideration of this topic. In this regard, I note that CEDAW in its General Recommendation on Women’s access to justice, adopted in 2015, has recommended constructive dialogue and formalized links between plural justice systems, including through the adoption of procedures for sharing information among them⁸ . I would like to take this opportunity to encourage the Human Rights Committee to give renewed attention to indigenous justice system and consider, in consultation with indigenous peoples, reviewing the references in its General Comment 32 (2007) to “courts based on customary law”, in light of the United Nations Declaration on the Rights of Indigenous Peoples.⁹

I would like to conclude by stressing that the full implementation of the right of indigenous peoples to self-determination is at the core of redress and the foundation for reconciliation. In this sense, my report to the General Assembly this year comments on some steps ahead and challenges in the recognition and exercise of indigenous self-determination through autonomy or self-government arrangements. In my view, the recognition of the right of indigenous peoples to self-determination has a transformative potential when implemented at the national level. It implies changes in the general governance of the States which will have a constructive impact in terms of human rights compliance; remedy of discrimination, inequality and past and ongoing human rights violations; more democratic and inclusive societies; and enhanced legitimacy of the State itself. I hope the recommendations contained in the report can be useful for both indigenous peoples and Member States to advance the implementation of the Declaration.

I thank you all for your kind attention and I look forward to our exchange through the interactive dialogue.

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