Towards new development paradigms: the United Nations Declaration on the Rights of Indigenous Peoples as a tool to support self-determined development

ABSTRACT

Since the adoption of the UN Declaration on the Rights of Indigenous Peoples, indigenous peoples’ agency and ideas of development have become more central to wider development processes. This change finds its roots in the concept of ‘self-determined development’ (SDD), which has been fortified by the adoption of UNDRIP. SDD is built around key norms of UNDRIP, such as the rights of self-determination, free, prior and informed consent, the links between cultural rights and development and rights pertaining to land and natural resources. The normative shift towards SDD is surveyed in this article by looking at three topics: the jurisprudence of regional human rights courts on case law concerning development on indigenous peoples’ land; the advocacy of indigenous peoples around the indicators of the Sustainable Development Goals; and the adoption of community bio-cultural protocols by indigenous peoples to regulate development of their land, natural resources and cultural heritage. In each example, UNDRIP has influenced positive changes in law and policy concerning indigenous peoples’ views on development.

KEYWORDS:

• Indigenous peoples
• development
• sustainable development goals
• biocultural community protocols
• self-determined development

Acknowledgement

The authors would like to thank Marcus Erridge (University of Coimbra) and Fumiya Nagai (University of British Colombia) for their research assistance.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Jérémie Gilbert is Professor of Human Rights Law at the University of Roehampton (United Kingdom). His main area of research is on international human rights law, and more particularly the rights of minorities and indigenous peoples. He has extensively published on the rights of indigenous peoples, looking in particular at their right to land and natural resources. Jérémie has worked with several indigenous communities across the globe and regularly serves as a consultant for several international organisations and non-governmental organisations supporting indigenous peoples’ rights. As a legal expert, he has been involved in providing legal briefs, expert opinions and carrying out evidence gathering in several cases involving indigenous peoples’ land rights across the globe.

Corinne Lennox in Senior Lecturer in Human Rights at the School of Advanced Study, University of London and Co-Director of the Human Rights Consortium. Her research focuses on issues of minority and indigenous rights protection, civil society mobilisation for human rights and on human rights and development. She has worked for many years as a human rights practitioner with various NGOs, including at Minority Rights Group International, and has been an advisor on minority and indigenous rights to governments, the UNDP and the Office of the UN High Commissioner for Human Rights.

Notes

1. See Wolfgang Sachs, The Development Dictionary: A Guide to Knowledge as Power (Johannesburg: Witwatersrand University Press, 1993).

2. Nadia Nader, ‘Promise or Plunder? A Past and Future Look at Law and Development’, Global Jurist 7, no. 2 (2007). See also Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge University Press, 2003).

3. Cathal Doyle and Jérémie Gilbert, ‘Indigenous Peoples and Globalization: From “Development Aggression” to “Self-Determined Development”’, European Yearbook on Minority Issues 8 (January 2011).

4. See Michael T. Klare, The Race for What's Left: The Global Scramble for the World's Last Resources (Picador, 2012); Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World (OUP, 2016).

5. Charles Hale, ‘Neoliberal Multiculturalism: The Remaking of Cultural Rights and Racial Dominance in Central America’, Political and Legal Anthropology Review 28, no. 1 (2009): 10–28.

6. Corinne Lennox, ‘Minority and Indigenous Women and the Millennium Development Goals’, in State of the World's Minorities and Indigenous Peoples 2011 (London: Minority Rights Group International, 2011), 21–31; Permanent Forum on Indigenous Issues, Report on the fifth session (15–26 May 2006); Special Theme, The Millennium Development Goals and Indigenous Peoples: Re-defining the Millennium Development Goals, UN Doc. E/C.19/2006/11.

7. See, for example, Kelley Laird, MDGs Reports and Indigenous Peoples: A Desk Review, Secretariat of the UN Permanent Forum on Indigenous Issues (2006); Christopher Foley, MDGs Reports, CCAs and UNDAFs and Indigenous Peoples: A Desk Review 2010 (Secretariat of the UN Permanent Forum on Indigenous Issues, 2010).

8. See also the Rio+20 Indigenous Peoples International Declaration on Self-Determination and Sustainable Development, adopted 19 June 2012, Rio de Janeiro; https://www.iitc.org/wp-content/uploads/2013/07/Rio-20-Indigenous-Peoples’-International-Declaration-on-Sustainable-Development-and-Self-Determination-9-June-2012-Rio-de-Janeiro.pdf.

9. Permanent Forum on Indigenous Issues, ‘Consultation Workshop and Dialogue on Indigenous Peoples’ Self-Determined Development or Development with Identity’, 14–17 March 2008, Tivoli, 11–18 April 2008, UN Doc. E/C.19/2008/CRP.11.

10. International Expert Meeting on the UN Permanent Forum's theme for 2010, the theme was ‘Indigenous Peoples’ Development with Culture and Identity: Articles 3 and 32 of the UN Declaration on the Rights of Indigenous Peoples’.

11. Victoria Tauli-Corpuz, ‘Indigenous Peoples’ Self-Determined Development: Challenges and Trajectories’, in Towards an Alternative Development Paradigm Indigenous People's Self-Determined Development, eds. Victoria Tauli-Corpuz, Leah Enkiwe-Abayao, and Raymond de Chavez (Tebtebba Foundation, 2010), 4.

12. See Victoria Tauli-Corpuz, Leah Enkiwe-Abayao, and Raymond de Chavez, eds., Towards an Alternative Development Paradigm Indigenous People's Self-Determined Development (Tebtebba Foundation, 2010).

13. See Processes Towards the Development of an Indigenous Peoples’ Self-Determined Development Paradigm, in Victoria Tauli-Corpuz, Leah Enkiwe-Abayao, and Raymond de Chavez (eds.), Towards an Alternative Development Paradigm Indigenous People's Self-Determined Development (Tebtebba Foundation, 2010).

14. Victoria Tauli-Corpuz, ‘Indigenous Peoples’ Self-Determined Development’, 3.

15. World Bank, OP 4.10 – Indigenous Peoples, July 2005.

16. World Bank, Inspection Panel: Indigenous Peoples. Emerging Lessons; no. 2 (Washington, DC: World Bank Group, 2016), http://documents.worldbank.org/curated/en/447361478156710826/Inspection-Panel-Indigenous-peoples.

17. See Standard 6: Indigenous Peoples. UNDP, UNDP Social and Environmental Standards (UNDP, 2014), http://www.undp.org/content/dam/undp/library/corporate/Social-and-Environmental-Policies-and-Procedures/UNDPs-Social-and-Environmental-Standards-ENGLISH.pdf. See also the preceding United Nations Development Group Guidelines on Indigenous Peoples (adopted in 2008) https://www.ohchr.org/Documents/Issues/IPeoples/UNDGGuidelines.pdf.

18. International Finance Corporation, Performance Standard 7: Indigenous Peoples, 1 January 2012.

19. Inter-American Development Bank, Operational Policy on Indigenous Peoples and Strategy for Indigenous Development (Washington, DC: IADB, 2008); Asian Development Bank, The Bank's Policy on Indigenous Peoples (April 1998); Asian Development Bank, Safeguard Policy Statement (June 2009). The African Development Group Bank includes some recognition of indigenous peoples in its safeguard policies but does not have a dedicated policy on indigenous peoples. See African Development Group Bank, African Development Bank Group's Integrated Safeguards System – Policy Statement and Operational Safeguards (AFDB, 2013).

20. These were adopted by the World Bank in 2016 and come into force in 2018. See Corinne Lewis and Carl Soderbergh, ‘The World Bank's New Environmental and Social Framework: Some Progress but Many Gaps Regarding the Rights of Indigenous Peoples’, International Journal of Human Rights, this volume.

21. African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya, Communication 276/2003 (2010).

22. Id., para. 270.

23. Id., para. 129.

24. See Mario Blaser, Harvey A. Feit, and Glenn McRae, eds., In the Way of Development: Indigenous Peoples, Life Projects and Globalization (Zed Books and the International Development Research Centre, 2004).

25. Endorois Case, para. 227.

26. Id., para. 290.

27. Id., para. 228.

28. Id. para. 238.

29. Id. para. 148.

30. Ogiek, para. 209. Article 23 states: ‘Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions’.

31. Ogiek, para. 210.

32. Inter-American Court of Human Rights, Case of the Saramaka People v Suriname Inter-Am. Ct. H.R., (Ser. C) No. 172 (2007).

33. Ibid, See para. 131 where the court refers to Art. 32 United Nations Declaration on the Rights of Indigenous Peoples.

34. Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4 (27 June 2012), see para. 214–216.

35. Ibid, para. 121.

36. Ibid, para. 124.

37. UN General Assembly, Resolution 70/1, Transforming our world: the 2030 Agenda for Sustainable Development, UN Doc. A/RES/70/1 (21 October 2015).

38. See target 17.18 and para 74 (g) of Agenda 2030.

39. Permanent Forum on Indigenous Issues, Report of the Workshop on Data Collection and Disaggregation for Indigenous Peoples, UN Doc. E/C.19/2004/2 (10 February 2004).

40. Ibid, para 33 (4).

41. Meghan Davis, ‘Data and the United Nations Declaration on the Rights of Indigenous Peoples’, in Indigenous Data Sovereignty: Toward an Agenda, eds. Tahu Kukutai and John Taylor (ANU Press, 2015), 36.

42. Richard Maddena, Per Axelsson, Tahu Kukutai, Kalinda Griffiths, Christina Storm Mienna, Ngaire Brown, Clare Coleman, and Ian Ring, ‘Statistics on Indigenous Peoples: International Effort Needed’, Statistical Journal of the IAOS, 32 (2016): 39.

43. Permanent Forum on Indigenous Issues, Report of the Meeting on Indigenous Peoples and Indicators of Well-Being, UN Doc. E/C.19/2006/CRP.3 (20 April 2006).

44. Ibid, para 10.

45. Ibid, para 33.

46. UN General Assembly, Resolution 69/2, Outcome Document of the High Level Plenary Meeting of the General Assembly known as the World Conference on Indigenous Peoples, UN Doc. A/RES/69/2 (25 September 2014): para 10.

47. The Indigenous Peoples Major Group is one of the nine recognised Major Groups that can officially participate in the SDG processes at the global level. It is coordinated by the Tebtebba Foundation and the International Indian Treaty Council. See Indigenous Peoples Major Group at https://www.indigenouspeoples-sdg.org/index.php/english/.

48. Indigenous Peoples Major Group, Indigenous Peoples Major Group Position Paper on Proposed SDG Indicators (2015), https://www.iwgia.org/en/resources/publications/306-briefings/3203-indigenous-peoples-major-group-position-paper-on-proposed-sdg-indicators.

49. Ibid., 3.

50. Ibid., 8.

51. This idea emerged initially in the series of PFII workshops on data collection (see supra note 42). The 2016 PFII Expert Group Meeting on Indigenous Peoples and the 2030 Agenda recommended that the plan be taken forward. PFII, Meeting Report of the Expert Group Meeting on Indigenous Peoples and the 2030 Agenda, UN Doc. E/C.19/2016/2 (16 February 2016): paras 34 and 39 (i).

52. See Indigenous Navigator, http://nav.indigenousnavigator.com/index.php/en/.

53. Indigenous Navigator, Leaving No One Behind!: Integration of Global SDG Indicators in the Indigenous Navigator Monitoring Framework (n.d.), http://nav.indigenousnavigator.com/images/Documents/Tools/Navigator_IntegrationSDGIndicators.pdf.

54. Tahu Kukutai and John Taylor, eds., Indigenous Data Sovereignty: Toward an Agenda (ANU Press, 2016).

55. This became a Tier II indicator in November 2017 and there is a commitment to move it to Tier I by the end of 2019. See Everlyne Nairesiae, IAEG-SDGs Upgrade Indicator 1.4.2 to Tier II Status (Land Links, 2017), https://land-links.org/2017/11/iaeg-sdgs-upgrade-indicator-1-4-2-tier-ii-status/.

56. See, for example, a report of the 2018 session of the PFII: ECOSOC, Update on Indigenous Peoples and the 2030 Agenda for Sustainable Development; Note by the Secretariat, UN Doc. E/C.19/2018/2 (1 February 2018): para 24 (d); also see paras 9 and 21 for discussion on land indicators.

57. Nairesiae, supra note 55.

58. Agenda 2030, para 74 (a). See also, Department of Economic and Social Affairs, United Nations, Handbook for the Preparation of Voluntary National Reviews: The 2018 Edition (Department of Economic and Social Affairs, n.d.).

59. Agenda 2030, para 79.

60. Agenda 2030, para 74 (g).

61. Agenda 2030, para 74 (f).

62. Search made on 20 September 2018. The following VNRs include at least one mention of indigenous peoples: Botswana, Canada, Chile, Denmark, Estonia, Finland, Germany, Indonesia, Japan, Malaysia, Nepal, Norway, the Philippines, Sweden and Uganda. The Bangladesh VNR mentions tribal communities. See Sustainable Development Knowledge Platform, Voluntary National Reviews Database, https://sustainabledevelopment.un.org/vnrs/.

63. Government of Malaysia, Malaysia Sustainable Development Goals Voluntary National Review 2017; High Level Political Forum (Economic Planning Unit, 20017), https://sustainabledevelopment.un.org/content/documents/16397BOTSWANA_VNR.pdf; Government of Nepal National Planning Commission, National Review of Sustainable Development Goals (2017), https://sustainabledevelopment.un.org/content/documents/16513Nepal.pdf.

64. Permanent Forum on Indigenous Issues, Substantive Inputs to the High-Level Political Forum; Thematic Review of the 2030 Agenda for Sustainable Development (Secretariat of the Permanent Forum on Indigenous Issues, 2016), 3, https://sustainabledevelopment.un.org/content/documents/10314Permanent%20Forum%20on%20Indigenous%20Issues%20(PFII).pdf.

65. Danish Government, Report for the Voluntary National Review; Denmark's Implementation of the 2030 Agenda for Sustainable Development (Ministry of Finance, 2017), 17.

66. Government of Chile, Chile Agenda 2030 Objetivos de Desarrollo Sostenible; Informe National Voluntario (2017), 2, https://sustainabledevelopment.un.org/content/documents/15776Chile.pdf; Norway, Initial Steps Towards the Implementation of the 2030 Agenda: Voluntary National Review Presented at the High-Level Political Forum on Sustainable Development (2016), 2, https://sustainabledevelopment.un.org/content/documents/10692NORWAY%20HLPF%20REPORT%20-%20full%20version.pdf. See also the reports of: Government of the People's Republic of Bangladesh, Eradicating Poverty and Promoting Prosperity in a Changing World; Voluntary National Review 2017 (2017), 6, https://sustainabledevelopment.un.org/content/documents/15826Bangladesh.pdf; Government of Canada, Canada's Implementation of the 2030 Agenda for Sustainable Development; Voluntary National Review (Global Affairs Canada, 2018), 3, https://sustainabledevelopment.un.org/content/documents/20312Canada_ENGLISH_18122_Canadas_Voluntary_National_ReviewENv7.pdf; Finland Prime Minister's Office, National Report on the Implementation of the 2030 Agenda for Sustainable Development Finland (2016), 13 and 35, https://sustainabledevelopment.un.org/content/documents/10611Finland_VNR.pdf.

67. Government of Canada, Canada's Implementation of the 2030 Agenda for Sustainable Development; Voluntary National Review (Global Affairs Canada, 2018), 11–13, https://sustainabledevelopment.un.org/content/documents/20312Canada_ENGLISH_18122_Canadas_Voluntary_National_ReviewENv7.pdf.

68. Government of Malaysia, Malaysia Sustainable Development Goals Voluntary National Review 2017; High Level Political Forum (Economic Planning Unit, 20017), 36, https://sustainabledevelopment.un.org/content/documents/16397BOTSWANA_VNR.pdf.

69. See also Sweden, Sweden and the 2030 Agenda; Report to the UN High Level Political Forum 2017 on Sustainable Development (2017), 59, https://sustainabledevelopment.un.org/content/documents/16033Sweden.pdf.

70. Republic of Botswana, Botswana Voluntary National Review on Sustainable Development Goals 2017, Figure Four: Sustainability Guiding Principles, https://sustainabledevelopment.un.org/content/documents/16397BOTSWANA_VNR.pdf.

71. See http://www.community-protocols.org. For analysis, see Holly Shrumm and Harry Jonas, eds., Biocultural Community Protocols: A Toolkit for Community Facilitators (Natural Justice: Cape Town, 2012).

72. See Kabir Bavikatte and Harry Jonas, eds., Bio-Cultural Community Protocols: A Community Approach to Ensuring the Integrity of Environmental Law and Policy (Nairobi: United Nations Environment Program, 2009).

73. See Maria Yolanda Teran, ‘The Nagoya Protocol and Indigenous Peoples’, The International Indigenous Policy Journal 7, no. 2 (2016).

74. However, see Kimberly R. Marion Suiseeya, ‘Negotiating the Nagoya Protocol: Indigenous Demands for Justice’, Global Environmental Politics 14, no. 3 (2014): 102–24.

75. For analysis, see Kabir Bavikatte and Daniel F. Robinson, ‘Towards a People's History of the Law: Biocultural Jurisprudence and the Nagoya Protocol on Access and Benefit Sharing’, Law, Environment and Development Journal 7, no. 1 (2011).

76. See Kabir Bavikatte, Sanjay, Daniel Robinson, and Maria Julia Oliva, ‘Biocultural Community Protocols: Dialogues on the Space Within’, IK: Other Ways of Knowing 1, no. 2 (2015): 1–31.

77. See Louisa Parks, ‘Challenging Power from the Bottom Up? Community Protocols, Benefit-Sharing, and the Challenge of Dominant Discourses’, Geoforum 88 (2018): 87–95.

78. Harry Jonas, Kabir Bavikatte, and Holly Shrumm, ‘Community Protocols and Access and Benefit Sharing’, Asian Biotechnology and Development Review 12, no. 3 (2010): 49–76.

79. Ogiek Bio-Cultural Community Protocol (BCP), Ogiek Peoples’ Development Program (2015), https://www.ogiekpeoples.org/images/downloads/Ogiek-Bio-Cultural-Protocol.pdf

80. Ibid.

81. Ibid.

82. Manuel Ruiz, Possibilities and Limitations for a Biocultural Protocol(s) in Countries in the Andes and Amazon Basin (Deutsche Gesellschaft für Internationale Zusammenarbeit, 2012), 22.

83. See Community Protocols Toolbox, Developing and Using Community Protocols: Booklet 3 (Natural Justice & e Heinrich Böll Stiftun, 2016), https://za.boell.org/sites/default/files/booklet-3.pdf.

84. For updates on implementation and follow up to the judgment, see https://www.ogiekpeoples.org.

85. See Kabir Sanjay Bavikatte, Stewarding the Earth: Rethinking Property and the Emergence of Biocultural Rights (Delhi: Oxford University Press, 2014); Giulia Sajeva, ‘Rights with Limits: Biocultural Rights–Between Self-Determination and Conservation of the Environment’, Journal of Human Rights and the Environment 6, no. 1 (2015): 30–54.