Office of the United Nations High Commissioner for
Human Rights
Expert Mechanism on the Rights of
Indigenous Peoples
Briefing for the Human Rights Committee, 16 July
2012
Outline








Background to the Expert Mechanism
Mandate of the Expert Mechanism: HRC Resolution 6/36
Composition of the Expert Mechanism
Sessions of the Expert Mechanism
Expert Mechanism Study on Education
Expert Mechanism Study on Participation
Expert Mechanism Study on Cultures and Languages
Where to find further information
Background to the Expert Mechanism on the
Rights of Indigenous Peoples
 Working Group on Indigenous Populations (1982 – 2006)
 Under the Sub-Commission on the Promotion and Protection of Human
Rights
 First draft of the Declaration on the Rights of Indigenous Peoples
 Working Group on the Draft Declaration on the Rights of Indigenous Peoples
(1995 – 2006)
 Under the Commission on Human Rights
 Finalised the text of the Declaration as submitted to the Commission on
Human Rights/Human Rights Council 2006
 Permanent Forum on Indigenous Issues (2000)
 Special Rapporteur on the Rights of Indigenous Peoples (2001)
 Human Rights Council adopted the Declaration in June 2006
 Adoption of the Declaration on the Rights of Indigenous Peoples in the General
Assembly (Sept 2007)
 Human Rights Council established the Expert Mechanism on the Rights of
Indigenous Peoples (December 2007)
Mandate
Resolution 6/36
1. Decides, in order to assist
the Human Rights Council in
the implementation of its
mandate, to establish a
subsidiary expert
mechanism to provide the
Council with thematic
expertise on the rights of
indigenous peoples in the
manner and form requested
by the Council:
 Assistance for the
implementation of the
Council’s mandate
 Advisory function
 Human Rights Council
requests manner and form
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
decision making (2009 –
2010): Res 12/13
 Cultures and languages
(2011): Res 18/8
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/unh
rc/)
 Reports at the same time as the
Special Rapporteur on the rights
of indigenous peoples
Composition
Human Rights Council Resolution
6/36 (2007)
 3. Further decides that the
expert mechanism shall consist
of five independent experts
 4. Strongly recommends that,
in the selection and
appointment process, the
Council give due regard to
experts of indigenous origin;
 6. Also decides that the
members of the expert
mechanism shall serve for a
three-year period and may be
re-elected for one additional
period;
2012 - 2015
Anastasia Chukhman
(Russian Fed): 2013
Jannie Lasimbang
(Malaysia): 2014
Wilton Littlechild
(Canada): 2014
José Carlos Morales
Morales (Costa Rica):
2013
Danfred Titus (South
Africa): 2015
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
Distinctions between the Indigenous Mandates
 Expert Mechanism
 Thematic advice 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, formulates
recommendations and works with other mandates such as
the Expert Mechanism
 Conducts country visits, responds to communications and
undertakes thematic studies
 Permanent Forum on Indigenous Issues
 Advises the Economic and Social Council, raises awareness
and promotes integration and coordination of activities on
indigenous issues within the UN system and prepares and
disseminates information on indigenous issues
Annual sessions
The Expert Mechanism meets
annually

in Geneva

usually in July

for 5 days
Indigenous peoples, states, nonstate actors, academia, national
human rights institutions and
others attend
Participation in the Expert Mechanism
Expert Mechanism studies
 Based on:
 Research undertaken by experts, including an analysis of relevant
jurisprudence from the UN human rights treaty bodies
 Submissions during sessions of the Expert Mechanism and calls for
contributions from states, indigenous peoples etc
 Expert seminars
 Contributions from:
 States
 Indigenous peoples – individuals and representatives of indigenous
peoples
 Academic institutions
 National human rights institutions
 Non-state actors
Education Study
 Education is an important means for the enjoyment, maintenance
and respect of indigenous cultures, languages, traditions and
traditional knowledge
 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
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
Education Study
 Challenges and measures include:
 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 consideration given to autonomy and participation of
indigenous peoples in the delivery of educational services
 The imposition of mainstream education on indigenous children
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
 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
Participation Study
 The principle of participation in decision making has a clear relationship with
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 matters that may affect them, based on the principle of free, prior
and informed consent.
 Examination of the human rights framework on the right to participate in
decision, including Human Rights Committee:
 General Comments 23 (on article 27) and 25 (on participation in public
affairs);
 Marshall et al. (Mikmaq people) v. Canada; and
 concluding observations that include references to article 1 ICCPR in the
context of indigenous peoples’ issues;
 noting the relationship between the right to participate and indigenous
peoples’ right to culture
Participation Study
 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
Participation Study
 Free, prior and informed consent:
 Consistent jurisprudence from treaties and from human rights treaty
bodies cited, including Human Rights Committee
 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 decisionmaking
Participation Study
 «good practices»:







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
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
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
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
Consistent approaches to the
Human Rights Committee
 Recent Human Rights Committee jurisprudence:
 similar approaches to consultation and free, prior and
informed consent (eg in CO for Australia (2009); Sweden
(2009); Mexico (2010); New Zealand (2010); El Salvador
(2010); Poma Poma v Peru; Togo (2011)
Resolution 18/8 (Sept 2011)
 2011-2012 study: cultures and languages (to be submitted to HRC
21 in September 2012)
 Request to continue to build on previous studies, including on
participation: EM focusing on indigenous peoples’ participation
in extractive industry
 Questionnaire seeking the views of States on best practices re:
implementation strategies to attain the goals of the Declaration
 Discuss the World Conference on Indigenous Peoples (2014) to
contribute the exploration of the modalities of the meeting,
including indigenous peoples’ participation at the Conference
and its preparatory process
Languages and cultures study
 To be submitted to the HRC in September 2012
 Draws on Human Rights Committee jurisprudence in relation to article
27 ICCPR and especially:
 Lubicon Lake v Canada; Mahuika v New Zealand and Poma Poma v
Peru.
 that cultural rights involve positive duties
 cultural rights can cover indigenous peoples’ use of their lands,
territories and resources and their culturally significant activities
 that cultural rights should be interpreted consistently with the right
to self-determination in the context of indigenous peoples’ issues
 that indigenous peoples’ participation is relevant in an assessment
of whether economic activities contravene indigenous peoples’
cultural rights
Relationship to the Human Rights
Committee
 Consistent approaches to the interpretation of rights,
for example the right to participate
 Expert Mechanism studies provide detail on how
cultural rights apply to situations facing indigenous
peoples, relevant to monitoring of states’ compliance
with the ICCPR, including in relation to individual
communications
«Added Value» of Expert Mechanism studies in
the jurisprudence of the Human Rights
Committee
 Consistent messages from across the UN system, thus
illustrating coordination (responding to issues associated with
fragmentation)
 Expert Mechanism’s Advice is based on
 significant research, often collating the jurisprudence from all
relevant human rights bodies, including from the regional human
rights systems
 is the subject of deliberations between states, indigenous peoples,
civil society, national human rights institutions and academics,
especially during its annual sessions
Questions?
 How might the Expert Mechanism assist the Human
Rights Committee in its work?
More information
 Expert Mechanism website
 http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/E
MRIPIndex.aspx
 OHCHR on indigenous peoples website
 http://www2.ohchr.org/english/issues/indigenous/index.h
tm