Regional consultation for the Asia and Pacific region on draft guidelines on the effective
implementation of the right to participate in public affairs
2-3 October 2017
Indigenous peoples in Asia and their rights to participate in public affairs
Patricia Miranda Wattimena
Advocacy Coordinator, Asia Indigenous Peoples Pact
Indigenous peoples constitute about 5% of the world’s population with an estimated number of 370 million. However, they account for 15% of the poorest rural people. Asia region is home for around 70% of the indigenous peoples worldwide. Indigenous peoples are known by different names – such as “ethnic minorities”, “nationalities”, “hill tribes”, “adivasi”, “masyarakat adat” and “Orang Asal/Asli”, among others. While they represent distinct and diverse cultures, their common features are historical subjugation and assimilation, ongoing marginalization and economic, social and political discrimination in relation to the majority of the population and continued dispossession of lands and resources and cultures. Many States in Asia do not legally recognize their distinction as indigenous peoples along with their rights affirmed by the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).
Ensuring effective participation of indigenous peoples in public affairs, especially on the matters that may affect them, is one of the fundamental steps to be taken in order to realize the rights of indigenous peoples as enshrined in UNDRIP, address wider range of issues affecting peoples on the ground and to combat all forms of discrimination against them. It will further contribute to the full enjoyment of indigenous peoples’ human rights and to the realization of inclusive governance. Effective participation needs to be differentiated from mere nominal representation of indigenous peoples. It should be seen as a constructive and collective way of their self-determination to reflect their voice in relevant public affairs and decision-making processes.
In this context, rights of indigenous peoples to participate in public affairs should be understood and protected in a broader context taking into account its individual and collective aspects. Rights of indigenous peoples related to their participation in public affairs are for example stated in articles 5, 18, 19 and 32(2) of the UNDRIP as well as in the International Labor Organization (ILO) Convention No. 169 on Indigenous and Tribal Peoples among others, and these must be fully incorporated in the national legislation, practice and development initiatives.
Issues and challenges
One of the major challenges for participation of indigenous peoples in public affairs is the non-recognition of indigenous peoples’ existence and rights. It worsened by lack of understanding on indigenous rights and values and good faith among the State and non-State actors when consulting and seeking consent from indigenous peoples regarding decisions affecting them.
Too often, affected communities were forced to sign papers, which they did not understand, or merely blank ones. As a result, many so-called “consultations” carried out by State or private actors were literally only for the record purpose without consideration to the voice and aspiration of the concerned communities. They are often seen in no way as an actor to determine the outcome of the process concerned. This worsened by the trend of top-down approach by States, which in most cases lead to land dispossession, displacement and loss of livelihood among others.
At the same time, indigenous peoples’ distinct governance system, decision making institutions and mechanisms are not fully recognized and respected. This led to many cases where decisions, through mechanisms and processes set up by States authorities, are arbitrarily taken and imposed upon the community. On the other hand, other major challenge is realizing their rights to participation in decision-making processes through mainstream processes, which might be alien to many indigenous communities.
There is lack of enabling environment including financial and technical capacity provided to them in order to meaningfully participate in those processes. For instance, there have been many cases in Asia where representatives of indigenous communities could not participate in such processes, because they lack the necessary financial and technical capacity. Often, they also lack the knowledge about the process itself, its modalities, or the languages used by State officials are sometimes different from what the communities could understand while no interpretation or translation is provided.
Furthermore, many indigenous persons are deprived of their right to vote and to be elected as a consequence of the limitation given to the electoral right as a right of “citizen”. In many cases, procedures and requirements to obtain national identity card and to be recognized as citizens of a country are not affordable, financially and technically, for many indigenous persons. There are also cases of Indigenous persons not allowed to have an identity card because of their traditional beliefs. This is happening in the countries where only particular religions are legally recognized and having one of these religions is prerequisite to obtain an identity card. The persons concerned had to choose either to have one of the legally recognized religions or opting not to have an identity card.
In some countries, affirmative actions through proactive programs have been put in place to increase the participation of indigenous peoples in political and public affairs. However, in such programs, genuine representation and participation of indigenous peoples as a collective still need to be ensured as in many cases individual participation of persons from indigenous groups often brought forth through vested interests.
Conclusion and Recommendations
In above context and with reference to the Human Rights Council resolution in question, it is critical for the guidelines to identify indigenous peoples as one of the key marginalized groups in terms of lack of equal rights to participation in public affairs. It should reflect indigenous peoples’ specific situations, distinct identities and the collective aspect of their rights as enshrined in the UNDRIP, ILO Convention 169 and other international human rights instruments and agreements. Realizing their collective rights to Free, Prior and Informed Consent is prerequisite to ensure meaningful participation of indigenous peoples.
The guidelines should reaffirm the obligation of States to recognize and respect Indigenous peoples’ self-governance system, representation and decision-making mechanisms and institutions.
It should encourage States to develop appropriate mechanism, in collaboration with indigenous peoples, as a way to ensure their effective consultation to obtain their free, prior and informed consent in every decision-making process that may affect them.
It should guide States to take special measures and ensure that sufficient financial and technical assistance is provided to facilitate full and effective participation and engagement of indigenous peoples in public affairs of the State.
Special initiatives should be undertaken in States where indigenous peoples still face the challenges of obtaining citizenship. Appropriate programs should be developed in conjunction with indigenous communities to ensure that those programs promote participation as a whole as per their own processes and values.
In developing the guidelines, special attention shall be given to the particular situation and vulnerability of indigenous women, youth and indigenous persons with disabilities.
 Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.
 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
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