Critical Issues and Challenges in addressing rights of indigenous persons with disabilities

Victoria Tauli-Corpuz, UN Special Rapporteur on the Rights of Indigenous Peoples

Human Rights Council
Expert Mechanism on the Rights of Indigenous Peoples
Ninth Session, 11-15 July 2016
Panel discussion on the promotion and protection of indigenous persons with disabilities

Geneva, July 11 2016

My presentation today contains my reflections on what I deem are critical issues which have to be addressed in the efforts to respect and protectthe rights of indigenous persons with disabilities. Last week the Special Rapporteur on the rights of persons with disabilities and my mandate with held an Expert Meeting on Indigenous Persons with Disabilities . This was with the support of the Office of the High Commissioner on Human Rights (OHCHR), the International Disability Alliance (IDA) and the ILO and in collaboration with the EMRIP and the UNPFII. The participants included representatives of indigenous persons with disabilities, States, the Committee of the on the Rights of Persons with Disabilities and experts from the ILO and the IDA The wealth of discussions in this Expert Meeting allowed me to better understand this issue but also led me to raise more questions than answers on how best to protect the rights of indigenous persons with disabilities.

In my presentation, I will analyse the nexus, similarities and differences between the Convention on the rights of persons with disabilities (CRPD) and the United Nations Declaration on the rights of indigenous peoples (UNDRIP). Clearly, there are tensions on how to address the individual rights of indigenous persons with disabilities and their collective rights of indigenous peoples. At the risk of oversimplifying, I understood that their main concern is how to make the disability movement more indigenous sensitive and the indigenous movement more sensitive to persons with disabilities. In other words what can be done to maintain the proper balance of respecting individual rights vis a vis collective rights?
I will end by presenting some ideas on how the CRPD can be utilized to promote the rights of indigenous persons with disabilities.

Legal Framework

Two questions I would like to flag in this presentation were the How to address situations that can lead to sickness and impairment in a way that does not negatively impact on the image and status of indigenous persons with disabilities?
How to promote an approach among indigenous peoples that embraces disability as part of human diversity?

The two main international human rights instruments which provide the legal frameworks for the protection and promotion of the rights of indigenous peoples with disabilities are the Convention on the Rights of Persons with Disabilities and the United Nations Declaration on the Rights of Indigenous Peoples. Actually, these were the two legal instruments which were adopted during the first session of the Human Rights Council in 2006. It is important to note that the rights holders, e.g. the indigenous peoples in the case of UNDRIP and the disabled persons in the case of the CRPD, were centrally involved in the drafting, negotiations and adoption of these instruments. The key difference is that the CRPD focused on the individual rights of persons with disabilities, while the UNDRIP mainly addressed the collective rights of indigenous peoples, without excluding individual rights of indigenous women, children, elders and persons with disabilities.

The Declaration makes specific references to indigenous peoples with disabilities in articles 21 and 22. During the World Conference on Indigenous Peoples in 2015, the outcome document (A/RES/69/2) refer to indigenous persons with disability in articles 9, 10 and 18. The principle of non-discrimination together with the State obligation to provide legal protection against discrimination on all grounds are at the core of the CRPD , and should be read in conjunction with the reference to multiple or aggravated forms of discrimination based on indigenous origin included in its preamble.

As the CRPD as a whole applies to all persons with disabilities, it therefore also applies to indigenous persons with disabilities.Accordingly the Committee on the Rights of Persons with Disabilities has systematically considered the situation of indigenous persons with disabilities while revising State reports and has made several recommendations in this regard. The UNDRIP and the CRPD should mutually reinforce each other, thus the need to better understand the intersections between both instruments. Moreover, the ILO Conventions No. 169, No. 111 and No. 159 and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child, among otherscan be used to protect the rights of indigenous persons with disabilities.

The principle of non-discrimination together with the State obligation to provide legal protection against discrimination on all grounds are at the core of the CRPD , and should be read in conjunction with the reference to multiple or aggravated forms of discrimination based on indigenous origin included in its preamble.

Studies done at the international level

A number of studies have explored or touched upon the issue of indigenous persons with disabilities. These include a study done in 2013 on the situation of indigenous persons with disabilities made by the Permanent Forum on Indigenous Issues (E/C.19/2013/6)[1] as well as the EMRIP Study in 2014[2] on access to justice in the promotion and protection of the rights of indigenous peoples: restorative justice, indigenous juridical systems and access to justice for indigenous women, children and youth, and persons with disabilities (A/HRC/27/65).These studies highlighted the problems faced by indigenous persons with disabilities and include very detailed recommendations addressed to states, the UN agencies , bodies, funds and indigenous peoples. In the EMRIP study remedies which can be used to address rights of indigenous persons with disabilities were also presented.

In my view these two reports substantially covered the main issues and identified the key actions which need to be done. The report of the Expert meeting we just had can contribute further in the discourse of the intersectionality between indigenous peoples rights and rights of indigenous persons with disability.

Issues raised at the Expert Meeting

The Background note for this expert meeting has identified the following issues which can be addressed;

a) Disability inclusion/mainstreaming versus the risk of assimilation
b) Collective rights versus individual rights
c) Identity and self-identification
d) Attitudes, myths and cultural beliefs within indigenous communities around disability
e) Challenges faced by women and girls with disabilities
f) How to apply an indigenous perspective to the CRPD, including how to apply the right to live independently and in the community (Art. 19 CRPD) to IPWDs
g) How to interpret the UNDRIP (and ILO Convention No. 169) from a disability perspective: issues relating to the prevention of impairment
Under each of these issues there were questions raised which were tackled by the panellists and the participants. Examples of these questions are;

· How to ensure that services for indigenous persons with disabilities are designed in such a way that they respect cultural sensitivities and do not impose non-indigenous norms?
· How to deal with any tensions between collective rights ( the main focus of UNDRIP and ILO C169) and individual rights (the main focus of the CRPD)?
· How to ensure in practical terms the interrelatedness and complementarity of these instruments?

· What lessons can be learned, if any, from similar discussions related to indigenous women?
· How to ensure that support services and mainstream services are organized in a culturally-sensitive manner?
· What rights and provisions of the CRPD require particular attention (and perhaps adjustment) for IPWDs?
· How to address situations that can lead to sickness and impairment in a way that does not negatively impact on the image and status of indigenous persons with disabilities?
· How to promote an approach among indigenous peoples that embraces disability as part of human diversity?

Some elements to consider on these questions raised

a. Cultural perceptions and attitudes on disability

Indigenous peoples with disabilities suffer multiple and aggravated forms of discrimination, including on the basis of their ethnic origin and disability. The way in which the care is designed and carried out is directly related the prevailing cultural perceptions on indigenous persons with disabilities within their own communities and the dominant society. For instance, in my Kankana-ey Igorot community, at a very young age we have been taught that caring for the most vulnerable persons in our villages is an obligation each of us have to do and these include persons with disabilities, orphans, widows, among others. So when agricultural seasons of planting, harvesting and weeding, there are members of the village who will help do these for the disabled persons. So it is the collective responsibility of the community to support persons with disabilities.

I am aware that persons with disabilities and indigenous peoples do not like to be labelled as vulnerable. However, I think that the vulnerability of indigenous peoples is linked with the lack of respect and protection of their basic collective and individual rights . If their right to self-determination, right to their lands, territories and resources, right to culture and right to effective participation, among others, are violated then they become vulnerable. What should be avoided is to consider them inherently vulnerable and making their identity equated with with vulnerability and poverty.

Indigenous communities that have moved away from their ancestors’ cosmovision, views, and rituals may have been negatively influenced by the western model of development, which gives priority to the individual’s success over that of the community.

b. Collective vs. individual rights

While the UNDRIP deals to a large extent with collective rights, the CRPD is focused on individual rights. However, as stated in my report on human rights violations towards indigenous women, including violence against them (A/HRC/30/41), “what international attention has been given to the (abuses against women) has not sufficiently focused on the nexus between individual and collective rights, nor on how intersecting forms of discrimination and vulnerability contribute to ongoing abuses”. While rights enshrined in the CRPD deal with individual rights, in the case of indigenous peoples, it is hard to separate collective rights from individual rights. As I noted in my report, “(a) strong link to the land, territory and natural resources is a characteristic that is commonly associated with indigenous peoples”. Furthermore, “(d)espite relevant provisions in international human rights law, indigenous peoples experience weak protection of their land and property rights, which exposes them to risks of displacement, expropriation and exploitation”… “They often do not hold formal titles to their land and their right to such land is one of the rights most violated. That allows Governments to impose destructive development projects or to lease and sell indigenous land without obtaining their free, prior and informed consent. Large-scale economic projects have been constructed on indigenous lands.”

An example which illustrates how the violation of collective rights can impact on individual rights of indigenous peoples and can result in disability on the community is particularly poignant in cases where States impose destructive development project which lead to struggle for indigenous peoples to assert their right to self-determination. As reported by NGOs and according to a recent study, over 90% of indigenous peoples in a particular region of the Amazon suffer from mercury poisoning as a result of illegal gold mining practices. The consequences of a violation of the collective rights of indigenous peoples, for instance, their right to control lands, territories and resources in their ancestral lands could result in an increase in violation to their individual rights and lead to long term disabilities with nursing mothers, pregnant women and children drinking and bathing in water contaminated by high levels of mercury.

I am cognizant of the fact that the CRPD does not deal with prevention of disabilities. I take note of the Paragraph 15 of the UNPFII report which states;

15. The negotiators of the Convention purposely did not include the issue of prevention of disability except in article 25, on health, in relation to preventing further disabilities for persons who already have a disability. Because the Convention deals with persons who already have disabilities, it follows that legislation and policies targeting the rights of persons with disabilities should avoid addressing the issue of prevention of disability. In addition, discussions around prevention often perpetuate negative, discriminatory and harmful stereotypes about disability. The greater chances in some indigenous communities of acquiring a disability (including those more closely linked with poverty, environmental contamination or working conditions), can, however, be discussed under the auspices of other relevant frameworks and not when discussing the rights of persons with disabilities (and keeping in mind the need to avoid harmful stereotypes about disability). If there are disproportionately more persons with disabilities among indigenous peoples, as compared with the rest of the population, this could be relevant in evaluating whether and how well any necessary services and support for persons with disabilities are provided by relevant parties. For these reasons, and using the Convention as a reference, prevention of disability is not discussed herein.

Ì think the UNDRIP and its implementation will have to deal with the issue of prevention. If the CRPD will not deal with this, then this is where the complementarity of the UNDRIP, the ILO Convention 169 will come in. While being conscious that discussions and actions on prevention will have to ensure that stigmatization and stereotyping will be avoided, for indigenous communities they will have to do what is needed to get their rights protected, respected and fulfilled by States. This will include preventing their communities from being used for so-called development projects which bring massive environmental devastation or from being militarized to the point where landmines are planted everywhere. Additionally, it should be recognized that in situations of armed conflict and natural disasters, which is what many indigenous peoples are going through, the risks of increasing the number of persons with disabilities get higher. Thus, reinforcing and designing community rehabilitation systems are important.

Conclusion

Together with the Convention on the rights of persons with disability, the UN Declaration on the rights of indigenous peoples and ILO 169, indigenous persons with disabilities should be able to benefit from comprehensive protection. However, the indigenous persons with disabilities have to be more active in terms of influencing both the implementation of the CRPD and the UNDRIP. Their inclusion in these arenas will contribute in making the CRPD more sensitive to indigenous persons with disabilities and also enabling the implementation of the UNDRIP and ILO Convention 169 to be equally sensitive. I urge the indigenous persons with disabilities to use the CRPD in the most effective way to get the States to protect their rights. Actively submit complaints to the Committee and get the Committee to make a general comment on indigenous persons with disabilities.

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