A/HRC/27/52
between, examples are emerging. In that regard, a core aspect of the mandate of the Special
Rapporteur is the identification of good practices and she hopes to contribute to
documenting positive experiences during the course of her mandate. States, indigenous
peoples themselves, non-governmental organizations and the United Nations system also
play important roles in exchanging experiences about where good practices are occurring,
and they should take advantage of reporting processes before international human rights
mechanisms, such as the United Nations treaty bodies and the universal periodic review, to
highlight examples.
22.
It is also important to obtain reports on good practices and obstacles from various
United Nations agencies, programmes and funds and other multilateral institutions that
have policies on indigenous peoples for which the United Nations Declaration on the Rights
of Indigenous Peoples was used as a reference point. Related to that is the extent of
implementation of the human rights-based approach to development has been applied to
address the specific situations of indigenous peoples. The common understanding of a
rights-based approach championed by the Office of the United Nations High Commissioner
on Human Rights, jointly with the United Nations Development Group, is one important
framework which links the development agenda with economic, social and cultural rights.
3. Conflicting interpretations about the content of core rights
23.
Yet, the steps outlined above will still not resolve some of the more complex issues
related to implementation. There are still conflicting interpretations among key actors of the
content of core rights of indigenous peoples and disagreement about how rights are to be
applied in specific situations, especially when competing rights and interests may be at
stake and balancing of rights needs to take place. Differing interpretations of rights by
States, indigenous peoples, business enterprises, non-governmental organizations and
others result in an uneven application of the standards and stymie progress in
implementation. The Special Rapporteur has observed that differences in interpretation
exist especially in relation to rights to lands and resources; the application of the duty of
States to consult with and seek the free, prior and informed consent of indigenous peoples
in matters that affect them; and harmonizing State and customary indigenous governance
and justice systems.
24.
The Special Rapporteur observes that much work remains to be done to ensure that
States and indigenous peoples come together to find common ground and agreement on the
most controversial issues. In that regard, States and indigenous peoples often settle into
entrenched positions and take adversarial approaches, a tendency that is especially notable
in the context of natural resource development.
25.
Assistance and guidance by international human rights mechanisms and other
external experts is essential in that regard. First, the international and other external actors
can help provide guidance and a deeper understanding of the content of international human
rights standards. The mandate of the Special Rapporteur can play, and already has played, a
crucial role in that regard, as has the work of other international human rights mechanisms,
including the Permanent Forum on Indigenous Issues, the Expert Mechanism on the Rights
of Indigenous Peoples, the United Nations treaty bodies and regional human rights
mechanisms, and the work of the Secretariat. Second, beyond just engaging in thematic
analysis and interpretation of particular rights, assistance from the international system and
other experts can provide technical assistance, including mediation, to help States and
indigenous peoples work through conflicts and disagreements where they arise. In this
second area in particular, much more work can be done.
26.
In situations in which agreement simply cannot be reached and decisions must be
taken, recourse mechanisms must be available at the national and international levels. At
the national level, domestic courts are intended to provide that oversight, although in some
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