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Asia Indigenous Peoples Caucus Dialogue with the Special Rapporteur on the situation of Human Rights & Fundamental Freedoms of Indigenous Peoplesat 9t

9th Session of the UN Permanent Forum on Indigenous Issues 19 – 30 April, 2010

Agenda Item: 4 (b)
Dialogue with the Special Rapporteur on the situation of Human Rights & Fundamental Freedoms of Indigenous Peoples

Presented by: Famark Hlawnching

Mr. Chairman, members of the Forum, ladies & gentlemen,

Since the office of the Special Rapporteur on Indigenous Peoples was established, we have had country visits and unofficial visits of the then Special Rapporteur, Professor Rodolfo Stavenhagen, to a number of countries in Asia and in other regions, including to the Philippines and to Cambodia. In 2009, the incumbent Special Rapporteur, Professor James Anaya, made a country visit to Nepal and made unofficial visits to India and Indonesia. We are encouraged by the Special Rapporteur’s unofficial visit to Thailand very recently in January 2010, in which he had broad consultation with indigenous representatives from Thailand, Thailand’s representative to ASEAN Inter-governmental Human Rights Commission, a representative from Thailand’s National Human Rights Commission and members from Asia Indigenous Peoples Pact (AIPP).

In addition to visits and dialogues, we are encouraged by the Special Rapporteur’s use of press statements, and communications to heads of governments in many cases which need urgent interventions. The Special Rapporteur can engage governments in several ways that the other two UN mechanisms on indigenous peoples – the Permanent Forum on Indigenous Issues (PFII) and the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) – cannot do so. Noting that country visits of the Special Rapportuer can only take place with government consent and cooperation, we request him to make unofficial visits where states are reluctant to provide consent and cooperation. We are encouraged with the growing cooperation between the Special Rapporteur with the Permanent Forum on Indigenous Issues and the Expert Mechanism on the Rights of Indigenous Peoples processes. While realizing the limitations of his office, we would urge the Special Rapporteur to also help increase synergy with indigenous peoples’ contributions to the work of the ILO, the UN human rights treaty bodies, the Office of the UN High Commissioner for Human Rights and the work of other Special Rapporteurs. In this respect, we recall and support proposal 4(1) of the First Session of the Expert Mechanism (UN Doc A/HRC/10/56 dated 8 January, 2009) that calls for the UN Voluntary Fund to facilitate the participation of indigenous peoples in the work of the Human Rights Council and that of the UN Treaty Bodies.

Mr. Chairman,
As the special theme of this session is “indigenous peoples: development with culture and identity:” the most pressing need is for a review of laws to make them conform to the standards of the UN Declaration on the Rights of Indigenous Peoples. In this regard, we, Asia Indigenous Peoples Caucus welcome both reports of the Special Rapporteur to Human Rights Council (UN Doc A/HRC/12/34 dated 15 July 2009) and UN General Assembly (UN Doc A/64/338 dated 4 September 2009). We urge States, UN Agencies, Programmes and Funds, and private companies to respect and implement the Special Rapporteur’s conclusions and recommendations particularly on “duty to consult” as their obligation in good faith. We also request the UNPFII to urge States, UN agencies, Programmes and Funds, and private companies to do so. We welcome that the Special Rapporteur is going to carry a study on “legal pluralism and indigenous customary law” and request the Special Rapporteur make broad consultations including indigenous peoples from Asia.

While it is a major step that the Association of South East Asia Nations (ASEAN) Intergovernmental Commission on Human Rights (AICHR) was finally created in October 2009, its mandate is yet largely on promotion, more than the protection of universally recognized fundamental rights and freedoms of ASEAN citizens including the collective rights of indigenous peoples. With this rather weak mandate, indigenous peoples together with civil society organizations and institutions shall continue to push for stronger and more encompassing mandate and framework to include the UNDRIP in addition to other international instruments to be an effective human rights mechanism. Another major development is the statement of commitment made by to Asian Forum of Parliamentarians on Population and Development (AFPPD) to promote and uphold the rights of indigenous peoples, consistent with the UNDRIP during its meeting in March 2010. This commitment will have to be transformed into concrete legislative actions at the national level through the review and reform of laws and policies relating to indigenous peoples. In this context, effective consultations and partnership with indigenous peoples are necessary to bring about positive changes in national legislation towards the recognition of indigenous peoples rights. Another major step undertaken at the regional level was the partnership being established by the Office of the High Commissioner for Human Rights (OHCHR) with national human rights institutions towards the incorporation of the rights and issues of indigenous peoples into the work in NHRIs. This effort shall not only facilitate greater awareness of NHRIs on indigenous peoples rights, but can also facilitate a more comprehensive framework for the programmes of NHRIs that will truly benefit indigenous peoples in Asia.

On the part of indigenous peoples, several initiatives have already been undertaken at all levels to promote the UNDRIP and push for its implementation. On the part of the Asia Indigenous Peoples Pact (AIPP), it has produced more than 17,500 info-poster on the UNDRIP in 10 languages in Asia. It has also conducted a Training of Trainers (ToT) on the UNDRIP and has published a training Manual on the UNDRIP. It has also started working closely with some members of the AICHR and also with NHRIs to mainstream indigenous issues into their work. Further, AIPP has strengthened its collaboration work with UN agencies particularly with ILO- PRO 169, UNDP-RIPP, UNFPA and IFAD among others. There is no doubt that UN agencies can play a vital role in promoting the UNDRIP in its partnership with states and other bodies.

In conclusion, we make the following recommendations;

1. To immediately organize national and sub-national workshops in cooperation with the Special Rapportuer, on the UNDRIP that shall include concerned state agencies including legislative and judiciary, NHRIs, UN agencies and representatives of indigenous peoples organizations, institutions and movements.

2. For the UNPFII, UN agencies and other donors, to make fund available for organizing Asia regional workshop in cooperation with SR on “legal pluralism and indigenous customary laws”

3. For the UNPFII in cooperation with the Special Rapportuer, to work closely with relevant UN bodies and procedures under the Human Rights Council for the monitoring and reporting on the situation of indigenous peoples including providing recommendations to states and other bodies relating to their implementation of the UNDRIP

4. For the UNPFII in cooperation with the SR, to work closely with the ASEAN Inter-governmental Commission on Human Rights (AICHR) and indigenous organizations towards integrating the rights and concerns of indigenous peoples in the work of the AICHR. In particular, the UNPFII can facilitate exchanges and workshops between and among the regional human rights mechanisms on how they are addressing the issues of indigenous peoples in relation to UNDRIP

5. For the UNPFII in cooperation with the SR, to fully support the development of indicator- tools in partnership with UN agencies and indigenous organizations/institutions at the national and local levels on the implementation of the UNDRIP

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