Undermining Indigenous Peoples’ Rights: The Ongoing Struggle for Recognition in UN Environmental Agreements

Authors & affiliation:

Bryan Bixcul - Cultural Survival/SIRGE Coalition

Jan Morrill - Earthworks/SIRGE Coalition 

Prem Singh Tharu - Asia Indigenous Peoples Pact (AIPP) 

Edson Krenak - Cultural Survival/SIRGE Coalition

Yblin Román Escobar - SIRGE Coalition

For decades, a troubling trend has persisted: the dilution or deletion of text about the rights of Indigenous Peoples from UN agreements, treaties, and resolutions, often under the disguise of “compromise.” This issue is strikingly apparent in recent agreements under major UN conventions such as the UN Convention on Biological Diversity (UNCBD), (UN Framework Convention on Climate Change (UNFCCC), and the UN Environment Assembly (UNEA). 

This systematic weakening of language undermines Indigenous Peoples’ right to self-determination, perpetuates colonial legacies of control over Indigenous Peoples’ resource-rich lands, and territories, and obstructs the full realization of their rights as enshrined in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). For instance, there is a total absence of references to Indigenous Peoples, the right to self-determination, and the right to Free, Prior and Informed Consent (FPIC) in several key UNEA Resolutions, including: 4/3 on Sustainable Mobility (2019); 4/19 on Mineral Resource Governance (2019); 5/12 on Environmental Aspects of Minerals and Metals Management (2022); and 6/5 Environmental Aspects of Minerals and Metals (2024). 

The sixth session of the United Nations Environment Assembly (UNEA-6), which convened from February 26 to March 1, 2024, at the United Nations Environment Programme (UNEP) Headquarters, in Nairobi, Kenya, followed this trend. The UNEA-6 concluded by adopting 15 out of 22 proposed resolutions, none of which included the rights of Indigenous Peoples and their Free, Prior, and Informed Consent (FPIC). 

The UNEA is the highest-level global platform for addressing crucial environmental concerns and formulating decisions to promote sustainability. Through its deliberations and resolutions, the UNEA contributes to advancing the implementation of global environmental goals and targets agreed upon under various international frameworks, such as the Sustainable Development Goals (SDGs) and the Paris Agreement. UNEA is essential in mobilizing global efforts, fostering partnerships, and raising awareness on pressing environmental issues like climate change, biodiversity loss, pollution, and resource management. The sixth session focused on how multilateralism can help tackle the triple planetary crises of climate change; nature and biodiversity loss; and pollution and waste.

Approximately 54% of global mining projects are located on or near Indigenous Peoples' territories, spanning nearly one-quarter of the world's terrestrial surface and containing 80% of the world's remaining biodiversity. These lands provide vital ecosystem services, such as carbon sequestration, that benefit the global environment. Unfortunately, despite the significance of these issues, UNEA resolutions consistently fail to recognize the vital roles of Indigenous Peoples and their right to self-determination. 

While the original language of Resolution 6/5 on Environmental Aspects of Minerals and Metals included recognition of Indigenous Peoples’ right to FPIC and specifically referenced the UN Declaration on the Rights of Indigenous Peoples, this language was removed during closed-door negotiations in the final hours, where Indigenous Peoples and their allies were not allowed in the room. The final version of the resolution included language "Noting General Assembly resolution 76/300 entitled ‘The human right to a clean, healthy and sustainable environment’ but did not require any due diligence. The resolution specifically emphasizes artisanal and small-scale mining and their related health risks as environmental challenges but omits similar language on large-scale-minings implying tacit support. The resolution has not only ignored Indigenous Peoples and their fundamental human rights and Indigenous Peoples’ rights secured by the UN Declaration on the Rights of Indigenous Peoples but also excluded the UN Guiding Principles on Business and Human Rights (UNGPs). While the UNGPs do not exclusively focus on Indigenous Peoples, they still provide essential safeguards for their rights. By excluding these principles, the resolution fails to ensure corporate responsibility and access to remedies for victims of business-related abuses, leaving Indigenous Peoples particularly vulnerable.  

The impacts of extractive industries on Indigenous Peoples cannot be overstated. Earlier in 2024, the Business and Human Rights Resource Centre reported 631 allegations of human rights violations made against all companies that they track and that are involved in transition mineral extraction. The report underscores that Indigenous Peoples disproportionally bear the brunt of the harmful impacts of transition minerals mining. More often than not, mining and renewable energy projects occur on unceded lands without the FPIC of Indigenous Peoples, leading to the desecration of sacred places, murders of human rights defenders, and environmental threats to the land, water, and subsistence resources for people already experiencing climate change impacts. These impacts are global and certain to continue if there is not a shift in the understanding of Indigenous Peoples’ rights.

The self-determination of Indigenous Peoples is a fundamental right enshrined in various international frameworks, including the UN Declaration on the Rights of Indigenous Peoples, the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. This right allows Indigenous Peoples to determine their political status and pursue their economic, social, and cultural development autonomously. However, this right often conflicts with state sovereignty and control over natural resources. 

Article 4 of UNDRIP affirms that Indigenous Peoples have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as the means for financing their autonomous functions. Article 11 further emphasizes the cultural rights of Indigenous Peoples, including the right to practice and revitalize their cultural traditions and customs. States are obligated to provide redress for the appropriation of Indigenous Peoples’ cultural, intellectual, religious, and spiritual property without FPIC.

Indigenous Peoples' right to self-determination is critical in mineral resource governance and environmental sustainability. As mentioned earlier, Indigenous Peoples’ lands and territories are rich in natural resources, including energy transition minerals for renewable energy technologies. States often assert sovereignty over these resource-rich lands, prioritizing national economic development over Indigenous Peoples' rights. This control leads to mining and other extractive activities without securing the FPIC of Indigenous Peoples and their communities. 

Securing FPIC is essential for protecting Indigenous Peoples’ rights and ensuring their participation in decisions affecting their lands and resources. There is a critical need to enforce FPIC, particularly as demand for transition minerals increases. Failure to secure FPIC leads to conflicts, environmental degradation, and human rights violations, disproportionately impacting Indigenous Peoples and their communities.

To effectively advocate for the rights of Indigenous Peoples, it is imperative to ensure and increase Indigenous Peoples’ participation in UN mechanisms and to advocate for strong references to Indigenous Peoples’ rights and the implementation of these agreements at national levels. 

UNEP must improve in how it respects the self-determination of Indigenous Peoples. Indigenous Peoples’ rights advocates face significant barriers in commenting on draft resolutions, negotiating, and participating in UNEP initiatives, which are primarily accessible only to UN Member States and accredited organizations. While UNEP’s Civil Society Unit offers a path for participation, the accreditation process is lengthy and bureaucratic, taking 90 days (about 3 months) and requiring extensive documentation to prove legal and non-profit status. This cumbersome process delays timely involvement. Accreditation allows observer status, contributions, and event organization, but its complexity often hinders effective participation. Indigenous Peoples are calling for a streamlined process to reduce these bureaucratic barriers. Simplifying documentation, speeding up approvals, and providing direct support to Indigenous Peoples’ organizations to enhance their participation and reduce their access inequity.

This access inequity can also be seen in the recently announced UN Secretary-General’s Panel on Critical Energy Transition Minerals, which is focused on ensuring a just and equitable transition to renewable energies while safeguarding social and environmental protections. This panel aims to ensure that resource-rich low and middle-income countries, including Indigenous Peoples’ territories, benefit economically from the transition. However, the primary point of coordination for Indigenous Peoples remains through the UN Permanent Forum on Indigenous Peoples Issues (UNPFII), limiting broader representation and influence from Indigenous Peoples’ representatives. The UNSG should work to correct this power imbalance and ensure adequate participation of Indigenous Peoples’ representative organizations in the panel. 

Governments, as Member States in UN bodies, must acknowledge, respect, and champion Indigenous sovereignty both domestically and via their participation in international institutions like the UN. This acknowledgment is not only a matter of domestic policy but also an international obligation. International mechanisms, such as the Inter-American Court of Human Rights and the UN Human Rights Council, International Labour Organization (ILO) Convention No. 169 on Indigenous and Tribal Peoples (1989), International Covenant on Civil and Political Rights (ICCPR), paragraph 27, International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966), and Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1965) have the authority to hold governments accountable for violations of Indigenous Peoples’ rights, even if national laws do not provide adequate protection. International bodies can enforce accountability as well. These mechanisms provide a crucial layer of protection and ensure that Indigenous rights are upheld globally.