A/72/186
where legislation recognizing the rights of indigenous peoples has been adopted,
there are glaring inconsistencies between such legislation and existing regulations
concerning investments, extractive activities such as mining, infrastructure
development, forestry, agriculture or conservation measures. 40
34. During the past decade, the mandate holder has responded to requests by State
officials and indigenous peoples to provide assistance in the development of
constitutional and legal reforms to harmonize the domestic legal frameworks with
the applicable international standards on the rights of indigenous peoples.
Regarding constitutional reforms, the mandate holder has provided advice in the
cases of Ecuador and Chile. 41 Regarding the regulation of the State duty to consult,
the mandate holder has provided interpretative comments on the nature of this duty,
and specific observations at the request of Governments on the development and
contents of related legal instruments. Technical advice has also been provided
regarding the legal recognition of indigenous justice systems and their articulation
with ordinary justice, and on legislation to protect indigenous lands.
35. A positive trend has developed during the past 10 years with the use of the
Declaration as a source of law in regional and national courts. 42 Gradually, the
Declaration is being incorporated into jurisprudence and cited as an authoritative
legal source in the interpretation of the content of indigenous rights. Some
Constitutional and Supreme Courts have also explicitly recognized the Declaration
in developing jurisprudence at the domestic level. 43
36. Particularly significant are the developments in the Inter -American and
African human rights systems. The mandate holder has consistently collaborated
with these regional systems, including as expert witness at the request of the
Inter-American Court of Human Rights. 44
VII. Translation into effective policies
37. An important element for operationalizing the recogni tion of the human rights
of indigenous peoples is the adoption of adequate public policies. Both before and
after the adoption of the Declaration, public policies addressing indigenous peoples
were adopted in several countries. The mandate holder has had t he opportunity to
receive information on these issues during the country visits, has identified best
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40
41
42
43
44
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Comments of the mandate holder can be found in the mission reports on visits to, for example,
Argentina; Colombia; Guatemala; New Zealand; and the Sápmi region. See also A/70/301;
A/HRC/33/42; and A/71/229.
See A/HRC/9/9/Add.1 and A/HRC/15/37/Add.7 on Ecuador; and A/HRC/12/34/Add.6 on Chile.
The Inter-American human rights system has interpreted the American Convention and the
American Declaration in the light of ILO Convention No. 169 and, since 2007, of the
Declaration. See Inter-American Court of Human Rights, Kaliña and Lokono Peoples v.
Suriname, judgment of 25 November 2015, and a compilation of relevant jurisprudence,
available from www.corteidh.or.cr/sitios/libros/todos/docs/indigenas.pdf. On indigenous rights in
the African human rights system, see Centre for Minority Rights Development (Kenya) and
Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya , 276/2003,
African Commission on Human and Peoples’ Rights, 4 February 2010; and African Commission
on Human and Peoples’ Rights v. Republic of Kenya (the Ogiek peoples), application
No. 006/2012, judgment of 26 May 2017.
Constitutional Court of Colombia, judgement T-129/11 (2011). The Supreme Court of Belize
applied the Declaration in the case of the Maya people of Belize already in 2007. Further
overview of jurisprudence citing the Declaration is available in the report of the Expert
Mechanism on the Rights of Indigenous Peoples (A/HRC/36/56, 2017).
For examples of mandate holder cooperation with the Inter -American system, see A/65/264,
para. 8; A/66/288, para. 26; A/68/317, paras. 53-54; and A/HRC/12/34, para. 16. The mandate
holder has attended sessions of the African Commission on Human and Peoples’ Rights.
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