UNDRIP Implementation

UN Headquarters, United Nations. New York City

I am sitting in on a side event preparatory to the afternoon meeting of the United Nations Permanent Forum on Indigenous Issues.  The Side Event, and there are many such meetings going on simultaneously, is a special meeting set up by an organization or group of organizations to discuss a topic relevant to the UN meeting.  This particular meeting has attracted perhaps 150 people from indigenous communities around the world.  It is a session led by South American Indigenous organizations.  My observations and comments follow:

The proactive advocacy and integration of principles by indigenous peoples is the key to the achievement of aspirations associated with the principles contained in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Indigenous communities must become informed about the content of this important declaration developed within the United Nations with extensive participation of indigenous peoples from 1986 – 1994.  Once adopted by the UN General Assembly in 2007 the Declaration became a force of principle that requires active advocacy, and concrete implementation in indigenous peoples’ governing institutions and in the governing institutions of states’ governments.

Just as the Declaration on Human Rights required, and continues to require, vigorous advocacy and active implementation, so it is true of the UNDRIP.

Indigenous governing bodies must become active participants in the implementation of the UNDRIP by imprinting the principles in indigenous government laws.  Indigenous peoples have a real opportunity and a real responsibility to act pro-actively.

When indigenous governing bodies act, the states’ government can be compelled to act as well.  States’ governments are now faced with a reality in UNDRIP, but it will only become a true reality if indigenous peoples act.

Renaldo Bernado, Assistant to James Anaya…Special Rapporteur on Human Rights, speaking before a United Nations side event during the UN Permanent Forum on Indigenous Issues discussed the process of consultation within the framework of UNDRIP Article 32: On the right of indigenous people to use and dispose of lands, territories and resources for their benefit. Mr. Bernado discussed regional political participation of indigenous peoples in Amazonia, Peru and other South American regions, and particular several negative trends.

Overcome obstacles to the protection of indigenous rights and promote the good practices of states’ governments.

“We have seen different problems in Amazonia and Peru in connection with hydroelectric development…taking over indigenous peoples’ lands,” noted Bernado.

The UNDRIP is not being recognized by the states in Amazonia and Peru, and nor are these principles recognized by developers.

What is the right of consultation:  It is the right of collective participation in the political process. Should force the state to engage in a dialog with the institutions of indigenous peoples and the typical forms of government.  The governments should respect indigenous rights and respect the indigenous leaders.  The process of consultation should take place BEFORE the development of a project.  The right for consultation is to establish a forum where the state and the indigenous people establish a good-faith dialog for the purpose of gaining a mutual agreement.

To conduct mutually agreed consultations, Bernador explains, indigenous communities must establish well organized governing bodies in accord with their customs, and strengthen the definition of their representatives.

The problem of consultation has been a focus of intense debate and many meetings between American Indians in Canada and United States for the better portion of the last 40 years.  It remains unresolved to this day, thought there are may proposals for clarifying how consultations must be carried out.

In discussions with the Obama Administration these points have been made in 2009 regarding consultation:

a) With respect to Federal statutes and regulations administered by Indian tribes, the Federal Government shall grant Indian tribal governments the maximum administrative discretion possible. On issues relating to tribal self-government, tribal trust resources, or Indian tribal treaty and other rights, each agency should explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiated rulemaking.

            (b) When undertaking to formulate and implement policies that have tribal implications, agencies shall:

(1) undertake consultation with designated officials of the relevant Indian tribes;

(2) encourage Indian tribes to develop their own policies to achieve program objectives;

(3) where possible, defer to Indian tribes to establish standards; and

(4) in determining whether to establish Federal standards, consult with tribal officials as to the need for Federal standards and any alternatives that would limit the scope of Federal standards or otherwise preserve the prerogatives and authority of Indian tribes.

            (c) With respect to legislative proposals, Agencies shall not submit to the Congress legislation or comments on legislation that may affect tribal rights or interests without undertaking government-to-government consultation with relevant Indian tribes.

            (d) With respect to providing comments or recommendations on proposed federal actions or legal positions of the United States on matters that may affect tribal rights or interests, Agencies shall not submit such comments or recommendations without undertaking government-to-government consultation with relevant Indian tribes.

 (e) When undertaking to engage in government-to-government consultation with an Indian tribe or with an agency of the Indian tribe to formulate or implement policies that have tribal implications in accord with the principle of free, informed and prior consent guaranteed to Indian tribes

This process is in its development stages in the United States and elsewhere in the world.  It is a slow and sometimes thankless process, but it is crucial to the full implementation of the UN Declaration on the Rights of Indigenous Peoples.