May 2012

International Law Principles for REDD+: The Rights of Indigenous Peoples and the Legal Obligations of REDD+ Actors
Leonardo Crippa, Gretchen Gordon
Indian Law Resource Center, May 2012

Produced as a starting point aiming to stimulate further discussions on REDD+, international law and indigenous rights, this paper identifies a pathway to implement a human rights-based approach to development within REDD+ initiatives. It identifies the applicable international legal obligations and the rights of indigenous peoples that must be protected, aiming at educating governments, international agencies and other actors engaged in REDD+, as well as potentially affected indigenous communities regarding the human rights implications of these initiatives. It covers rights related to: self-determination and self-government; lands, territories and natural resources; participation in decision-making; free, prior and informed consent; benefit-sharing; and effective remedy. Download the paper [pdf] …

Consultation on UNDP’s Environmental and Social Compliance Review and Grievance Processes (Accountability Mechanism)
UNDP Discussion Paper, April 2012

UNDP has launched a consultation on a discussion paper, which outlines UNDP’s proposal to establish: a compliance review process to respond to claims that UNDP is not in compliance with applicable environmental and social policies, including its environmental and social screening procedure; and a grievance process that ensures individuals and communities affected by UNDP projects have access to appropriate dispute resolution procedures for hearing and addressing project-related disputes. UNDP is in the process of rolling out the application of an environmental and social screening procedure for UNDP projects. The ground-truthing phase of the screening procedure highlighted the need for UNDP to establish an accountability mechanism to receive and address grievances of those affected by UNDP-supported projects. Such a mechanism would be a key component of ensuring accountability to the application of environmental and social safeguards and would further strengthen UNDP’s capacity to respond to the needs of its clients, partners and stakeholders. Comments and questions are to be submitted to by Monday, 18 June 2012. Download the discussion paper in English [pdf] … Download the discussion paper in French [pdf] … Download the discussion paper in Spanish [pdf] … Download the FAQs sheet [pdf] …

Tuvalu Cultural Mapping, Planning and Policy Report
Alamai Sioni and Rt Hon. Bikenibeu Paeniu
Secretariat of the Pacific Community, 2012 | ISBN: 978-982-00-0538-9

A cultural mapping, planning and policy (CMPP) exercise was undertaken in Tuvalu, from September to November 2010. Consultations were held with all the eight island communities of Tuvalu: Nanumea, Nanumaga, Niutao, Nui, Vaitupu, Nukufetau, Funafuti and Nukulaelae. Overall, irrespective of its small population of around 10,000 people, Tuvalu has a rich and dynamic culture. This culture holds great potential for advancing the nation and its people by helping to conserve resources, modernise society and the economy, and preserve a unique way of life. Moreover, if accorded top priority within the national development policy framework, culture would certainly make a substantial contribution to the sustainable development of Tuvalu. The main outputs of the consultations were: the Tuvalu Cultural Lens and Toolkit; Tuvalu Cultural Indicators; and the draft Tuvalu National Policy on Culture. Another important output of the exercise has been the formulation of a draft framework on cultural statistics which should eventually be integrated into the national statistical database and indicators for Tuvalu. Both the Tuvalu cultural indicators and the National Policy on Culture were derived from the Tuvalu Cultural Lens and Toolkit matrices following the consolidation of all the findings of the consultations with all island communities. The main findings of the CMPP exercise relate to two broad frameworks for culture: national policy and legislation. Download the report [pdf] …

Golden Oldies? South African High Court Looks At What Is “Traditional”
IP Watch Inside Views, 29 May 2012

GENEVA, SWITZERLAND: Authored by Prof. Owen Dean, this article examines a case pending in the South African High Court, which highlights the question of what is “traditional” and raises the question of to whom music companies will have to look in the future to obtain permission to use traditional songs. The question of the use of material in the public domain for the inspiration of new works has been complicated in South Africa by legislation which purports to grant retrospective perpetual protection to so-called “traditional works.” The author examines whether this could be a disincentive to use traditional material belonging in the public domain and thus slow cultural expression. Read the article …

Eleventh Session of the UN Permanent Forum on Indigenous Issues
7-18 May 2012 (UN Headquarters, New York)

UNPFII-11 concluded with the adoption of nine recommendations, including on: the special theme of the ongoing impact of the doctrine of discovery on indigenous peoples and the right to redress; arrangements for the 2014 World Conference on Indigenous Peoples; the World Intellectual Property Organization (WIPO); food sovereignty; human rights; and emerging issues.

The recommendation on the impact of the doctrine of discovery on indigenous peoples (document E/C.19/2012/L.2) notes the need to redefine the relationship between indigenous peoples and the State as a way to develop a vision of the future for reconciliation, peace and justice. The Forum notes that UNDRIP Article 26, treaty body jurisprudence and case law from all major international human rights institutions confirm that indigenous peoples hold collective rights to the lands, territories and resources that they have traditionally owned, occupied or otherwise used, and that respect for their customs, traditions and land tenure systems is owed to them. Such rights have the same legal status as all other property rights to lands, territories and resources. International human rights law, including norms on equality and non-discrimination such as those affirmed in the International Convention on the Elimination of All Forms of Racial Discrimination and UNDRIP, demand that States rectify past wrongs caused by doctrines such as terra nullius, including the violation of the land rights of indigenous peoples, through law and policy reform, restitution and other forms of redress. The Forum welcomes the recommendation to establish a voluntary international mechanism to receive and consider communications from indigenous peoples specifically concerning their claims to, or violations of, their rights to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired, noting this recommendation deserves further elaboration by indigenous peoples and others concerned.

In the recommendation on human rights (document E/C.19/2012/L.9), the Forum recommends that the World Health Organization (WHO) revisit its report on social determinants of health to address the cultural determinants of health, such as land, language, ceremony and identity, which are essential to the health and well-being of indigenous peoples. The Forum also recommends that the full, effective and direct representation and participation of indigenous peoples, including their indigenous governments, councils, parliaments and other political institutions, should be ensured at all UN fora and negotiations, as well as in the drafting processes of the corresponding emerging instruments. Such instruments must be harmonized with UNDRIP, which is regarded as a reflection of the minimum human rights standards necessary for the promotion and protection of indigenous peoples, nations and communities.

On WIPO, the Forum recommends that WIPO seek the participation of experts on international human rights law specifically concerning indigenous peoples, so they could provide input into the process under the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), especially regarding language in the negotiating text that refers to indigenous peoples as “beneficiaries” and “communities”, as well as the general alignment of the draft with international human rights norms and principles (document E/C.19/2012/L.4). The Forum demands that WIPO recognize and respect the applicability and relevance of UNDRIP as a significant international human rights instrument, and also requests that WIPO commission a technical review of the IGC draft texts, to be conducted by an indigenous expert with the framework of indigenous human rights.

In the recommendation on the right to food and food sovereignty (document E/C.19/2012/L.10), the Forum notes that indigenous peoples’ right to food and food sovereignty is inextricably linked with the collective recognition of rights to land and territories and resources, culture, values and social organization. Subsistence activities such as hunting, fishing and gathering are essential not only to the right to food, but to nurturing their cultures, languages, social life and identity. Following the invitation by the Government of Mexico, the Forum appoints members Saul Vicente and Dalee Sambo Dorough to attend the G-20 Summit in June 2012 and present their views regarding the right to food. The Forum also welcomes the recent adoption of the FAO voluntary guidelines on the responsible governance of tenure of land, fisheries and forests in the context of national food security, and notes that the UN Conference on Sustainable Development (UNCSD orRio+20) should embrace the cultural dimensions of sustainable development. It also recommends that States formally recognize shifting cultivation as a traditional occupation for indigenous peoples that is closely related to their social and cultural identity and integrity. Visit the meeting webpage … Read the UN coverage of the concluding session … Read WIPO’s release on the dialogue with the Forum …

Pacific Islands Forum Trade Ministers Meeting
11 May 2012 (Majuro, Republic of the Marshall Islands)

Among several trade-related issues, the meeting considered an update of the traditional knowledge and intellectual property work, including the establishment of the Regional Trademarks Application System. Ministers agreed that Phase Two of the Traditional Knowledge Action Plan would focus on assisting Pacific Islands Forum member countries to draft TK policy and legislative frameworks, with a focus on the commercialization of TK and cultural industries. Member countries will be asked to request technical assistance for this process by the end of August 2012. The following member countries were represented at the meeting: Australia, Cook Islands, Federated States of Micronesia, Kiribati, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Republic of Marshall Islands, Tuvalu and Vanuatu. New Caledonia attended as an Associate Member. Read the PIFS press release … Download the meeting’s outcome document [pdf] …

Chile’s Native Communities Find Ally in Supreme Court
IPS, 11 May 2012

SANTIAGO, CHILE: Indigenous groups in Chile celebrated a recent court ruling that represented the latest victory in the struggle for respect for their right to be previously consulted about major projects which directly affect their communities. On 27 April, the Supreme Court upheld an earlier decision by an appeals court, which had cancelled the environmental permit granted to the Canadian mining giant Goldcorp for its El Morro gold and copper mine in the northern Chilean region of Atacama. The company reported that it had brought all work at El Morro to a halt, in line with the verdict handed down by the Court, which ordered it to consult with the small Diaguita de los Huascoaltinos indigenous agricultural community before carrying out any activity in their territory. The Court also ruled that the company must carry out a more thorough environmental impact assessment, which must also take into account the resettlement of local communities and effects on the traditional way of life of the Diaguita Indians. In addition, the verdict stated that the company violated International Labour Organisation (ILO) Convention 169 Concerning Indigenous and Tribal Peoples, Chile’s Indigenous Law, and the UN Covenant on Civil and Political Rights.

The Supreme Court ruling in the El Morro case was not unprecedented. For the past three years, indigenous communities around the country have filed legal action demanding compliance with ILO Convention 169. The first case was won by a Mapuche community in the southern city of Lanco, who were not consulted with respect to the construction of a garbage dump near their homes. Another victory involved a controversial wind farm on Chiloé Island in southern Chile, which the Supreme Court halted due to the company’s failure to properly consult with local Mapuche communities. Read the article … Read the decision of the Supreme Court [in Spanish] …

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