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Standard 6: Indigenous Peoples


Introduction
Indigenous peop​​les, as distinct​ people, ar​e equal to all other peoples. Indigenous individuals and indigenous peoples or communities are entitled to enjoy and ex­ercise their human rights without discrimination. Indigenous peoples possess col­lective human rights which are indispensable for their existence, well-being and development as peoples. The special relationship that indigenous peoples have with their lands, resources, and territories is integral to their physical, spiritual and cultural survival.​

The promotion and protection of the rights of indigenous peoples, especially concerning their lands, territories, traditional livelihoods, cultures and resources, are necessary to achieve UNDP’s goals of advancing human rights, respecting indigenous peoples identities and improving their well-being.
 
Objectives
  • To recognize and foster full respect for indigenous peoples’ human rights as recognized under Applicable Law, including but not limited to their rights to self-determination, their lands, resources and territories, traditional livelihoods and cultures
  • To support countries in their promotion and protection of indigenous peoples’ rights, through implementation of domestic laws, policies, and Project activities consistent with the State’s human rights obligations
  • To ensure that UNDP Projects that may impact indigenous peoples are designed in a spirit of partnership with them, with their full and effective participation, with the objective of securing their free, prior, and informed consent (FPIC) where their rights, lands, resources, territories, traditional livelihoods may be affected
  • To promote greater control and management by indigenous peoples over developments affecting them, including their lands, resources and territories, ensuring alignment of Projects with indigenous peoples’ distinct vision and self-identified development priorities
  • To avoid adverse impacts on the rights of indigenous peoples, their lands, resources and territories, to mitigate and remedy residual impacts, and to ensure provision of just and equitable benefits and opportunities for indigenous peoples in a culturally appropriate manner

Scope of Application
The applicability of this Standard is established during the social and environmental screening and categorization process. This Standard applies to all Projects which may affect the human rights, lands, natural resources, territories, and traditional livelihoods of indigenous peoples regardless of (i) whether the Project is located within or outside of the lands and territories inhabited by the indigenous peoples in question, (ii) whether or not title is possessed by the affected indigenous peoples over the lands and territories in question, or (iii) whether the indigenous peoples are recognized as indigenous peoples by the country in question.
 
Requirements

Respect for domestic and international law: UNDP will not participate in a Project that violates the human rights of indigenous peoples as affirmed by Applicable Law and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). (68) UNDP will ensure that social and environmental assessments for Projects involving indigenous peoples include an assessment of their substantive rights, as affirmed in Applicable Law.

Identification of indigenous peoples: There is no one universally accepted definition of indigenous peoples. For purposes of this Standard, “indigenous peoples” refers to distinct collectives, regardless of the local, national and regional terms applied to them, (69) who satisfy any of the more commonly accepted definitions of indigenous peoples. (70) These definitions include, among other factors, consideration of whether the collective: has pursued its own concept and way of human development in a given socio-economic, political and historical context; has tried to maintain its distinct group identity, languages, traditional beliefs, customs, laws and institutions, worldviews and ways of life; has exercised control and management of the lands, natural resources, and territories that it has historically used and occupied, with which it has a special connection, and upon which its physical and cultural survival as indigenous peoples typically depends; self-identifies as indigenous peoples; and whether its existence pre-dates those that colonized the lands within which it was originally found or of which it was then dispossessed. When considering the factors above, no single one shall be dispositive.

Land, resources and territory: UNDP Projects will recognize that indigenous peoples have collective rights to own, use, and develop and control the lands, resources and territories that they have traditionally owned, occupied or otherwise used or acquired, including lands and territories for which they do not yet possess title. If the Project involves activities that are contingent on establishing legally recognized rights to lands, resources, or territories that indigenous peoples have traditionally owned, occupied or otherwise used or acquired, an action plan will outline the steps and timetable for achieving legal recognition of such ownership, occupation, or usage (see paragraph 14 below). (71) In such cases, UNDP, with the consent of the relevant authority or Implementing Partner, will support such activities aimed at delimiting, demarcating and titling such lands, resources, and territories with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Legal personality: (72) UNDP recognizes that indigenous peoples’ right to legal personality is critical to the protection, respect and fulfillment of their human rights. If a UNDP Project involves activities that are contingent on the recognition of such legal personality, and such legal personality is not provided for in national laws consistent with the norms, values and customary laws of the peoples concerned, the action plan (see paragraph 14 below) will outline the steps and timetables for securing such recognition. In such cases, UNDP, with the consent of the relevant agency or Implementing Partner, will support such activities aimed at achieving such recognition.

Involuntary resettlement: No Project supported by UNDP will result in the forcible removal of indigenous peoples from their lands and territories. No relocation of indigenous peoples will take place without the free, prior and informed consent (FPIC) of the indigenous peoples concerned and only after agreement on just and fair compensation and, where possible, with the option of return. Without prejudice to this requirement, for further guidance see the Standard​ 5: Displacement and Resettlement.

Full, effective and meaningful participation: At the earliest stage of Project conceptualization and design, and iteratively throughout implementation and closure, mechanisms will be identified and implemented to guarantee the meaningful, effective and informed participation of indigenous peoples on all matters. Culturally appropriate consultation will be carried out with the objective of achieving agreement and FPIC will be ensured on any matters that may affect the rights and interests, lands, resources, territories (whether titled or untitled to the people in question) and traditional livelihoods of the indigenous peoples concerned. Project activities that may adversely affect the existence, value, use or enjoyment of indigenous lands, resources or territories shall not be conducted unless agreement has been achieved through the FPIC process. (73) (74)

Prior social and environmental impact study: All Projects that may impact the rights, lands, resources and territories of indigenous peoples require prior review and/or assessment of potential impacts and benefits. (75) Projects with potentially significant adverse impacts require a full social and environmental assessment conducted by an independent and capable entity. Reviews and assessments will be conducted transparently and with the full, effective and meaningful participation of the indigenous peoples concerned. (76) (77)

Appropriate benefits: UNDP will ensure that arrangements, evidenced in a documented outcome, are concluded with indigenous peoples for the equitable sharing of benefits to be derived by the Project in a manner that is culturally appropriate and inclusive and that does not impede land rights or equal access to basic services including health services, clean water, energy, education, safe and decent working conditions, and housing.

Support rights implementation: UNDP Projects will at all times be conducted in a manner consistent with UNDP’s commitment to support countries to implement their duties and obligations under domestic and international law regarding the rights of indigenous peoples, including relevant treaty obligations. Without prejudice to paragraphs 6 and 7 above, whenever possible, and at the request of the relevant government, Projects will include activities that support legal reform of domestic laws to strengthen compliance with the country’s duties and obligations under international law with respect to the rights of indigenous peoples, and these steps and timetable will be included in the Indigenous Peoples Plan.

Special considerations:

Gender: While respecting the norms, values and customs of the indigenous peoples and communities concerned, UNDP will ensure that Projects which may affect or involve indigenous peoples will pay particular attention to the rights and special needs of women and girls, will not discriminate against women and girls and will ensure that women and girls have equal opportunities to participate and benefit.

Vulnerable and marginalized indigenous peoples: Particular attention will be paid to the rights and special needs of indigenous elders, youth, children, persons with disabilities, including consideration of special measures to improve their participation in decision-making and their general well-being.

Uncontacted and voluntarily isolated indigenous peoples: Where Projects may directly or indirectly impact uncontacted or voluntarily isolated indigenous peoples, their lands, resources, territories or their way of life, this Standard requires that such Projects respect and protect the right of these peoples to remain in isolation and to live freely in that condition according to their culture. Such Projects will include the appropriate necessary measures to (i) safeguard the collective and individual physical, territorial, and cultural integrity of these peoples, (ii) recognize, respect and protect their lands and territories, environment, health and culture, and (iii) prohibit and therefore avoid contact with them as a direct or indirect consequence of the Project. Where relevant, UNDP will support countries to regularize the lands and territories of these peoples and establish buffer zones, to limit access to such territories, and to develop monitoring and emergency response measures, making avoidance of contact a priority.

Cultural Heritage: UNDP will respect, protect, conserve and not take or appropriate the cultural, intellectual, religious and spiritual property of indigenous peoples without their free, prior and informed consent. Without prejudice to this requirement, Standard 4: Cultural Heritage will apply where Cultural Heritage of indigenous peoples may be affected by a Project.

Indigenous Peoples Plan: If it is determined that the proposed Project may affect the rights, lands, resources or territories of indigenous peoples, an “Indigenous Peoples Plan” (IPP) will be elaborated and included in the Project documentation. This plan will be developed in accordance with the effective and meaningful participation of indigenous peoples and in accordance with the UNDP Indigenous Peoples Plan Guidelines (“IPP Guideline”) (pending). The IPP will be integrated into the design and implementation of the Project, have a level of detail proportional to the complexity of the nature and scale of the proposed Project and its potential impacts on indigenous peoples and their lands, resources and territories. In most UNDP Projects, the IPP would be carried out as part of Project implementation. However, in no case shall Project activities that may adversely affect indigenous peoples, including the existence, value, use or enjoyment of their lands, resources or territories take place before the action plan is carried​ out.

Monitoring: With the meaningful collaboration and contributions of indigenous peoples, methods will be developed and implemented for verifying and reporting that the Project has been designed and implemented in a manner consistent with this Standard. Transparent participatory monitoring arrangements will be put in place wherein indigenous peoples will jointly monitor Project implementation with the Implementing Partner.

​Footnotes:
​​​(68) This requirement is consistent with UNDP’s obligations as per Article 42 of UNDRIP, which provides that the “United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.” See UN Declaration on the Rights of Indigenous Peoples, available at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf​​.
 
(69) For example, “tribal people”, “first peoples”, “scheduled tribes”, “pastoralist”, “hill people.”

(70) Including but not limited to those provided for in the Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No. 169), the Study on the Problem of Discrimination against Indigenous Populations (the “Martínez Cobo Study”), and the Working Paper on the Concept of “Indigenous People” prepared by the Working Group on Indigenous Populations.  
(71) Legal recognition as discussed in paragraphs 6 and 7 is not a pre-requisite to the approval or implementation of all Project activities. However, the term “contingent” in these two paragraphs is to be understood to mean where in the absence of such recognition and as a result of implementation of Project activities there is a likelihood of adverse impacts to the rights, lands, resources and territories of indigenous peoples.
(72) Legal personality of an indigenous people is not to be confused with the identification of indigenous peoples in paragraph 5. Legal personality refers to whether an individual or an entity that is legally formed and recognized under Applicable Law has the rights to sue, be sued and to contract. The lack of legal personality of indigenous peoples may prevent them from entering into binding agreements or holding title to lands. A group may be recognized by a State as an indigenous people, but still lack formal recognition of its ‘legal personality’ under the laws of that State.
(73) UNDP will seek to provide technical and financial support to the indigenous peoples concerned in order to increase the awareness of their rights and strengthen their participation in accordance with their own norms, values and customs and through representatives designated by them.
 
(74) To guide in the implementation of this requirement, UNDP will encourage Implementing Partners and relevant authorities to refer to the United Nations Development Group Guidelines on Indigenous Peoples and the UN-REDD Guidelines on Free, Prior and Informed Consent (available at http://www.uncclearn.org/sites/default/files/inventory/un-redd05.pdf​​), each as subsequently modified or replaced. See also the background document “Key Elements of Free, Prior and Informed Consent,” available at http://tinyurl.com/p4pmtpa​.
 
(75) For Projects without adverse impacts on rights, lands, resources and territories of indigenous peoples but which still affect indigenous peoples, UNDP will ensure that such Projects are reviewed to identify any potential other impacts. Reviews may take the form of a limited social and environmental impact assessment, social assessment, or mitigation and management plan.
 
(76) UNDP will encourage the use of the Akwé: Kon Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments Regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities, CBD, available at http://www.cbd.int/doc/publications/akwe-brochure-en.pdf​.

(77) Where the American Convention on Human Rights is applicable, such study will be conducted by an independent and capable entity as per the Inter-American Court of Human Rights. This requirement is consistent with the decision of the Inter-American Court of Human Rights interpreting the American Convention. See Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs. Judgment of 28 November 2007, Series C No. 172, at para. 129, available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_172_ing.pdf.