February, 1^st 2021

Francisco Cali Tzay was appointed the new UN Special Rapporteur on the rights of indigenous peoples in May 2020. His arrival coincided with the start of the COVID-19 pandemic and so he has been forced to use virtual platforms in order to monitor and support Indigenous demands on their territories. Cali Tzay, a native of the Mayan kaqchikel peoples, is concerned at the failure to comply with free, prior and informed consultation, and he emphasises the interests of his administration: the impact of the pandemic, urban Indigenous people, Indigenous women and children, and forced migrations.

Indigenous Debates: What are the main challenges you have faced since your appointment as the new Special Rapporteur?

Francisco Cali Tzay: The COVID-19 pandemic has undoubtedly hindered the effective implementation of my mandate as Special Rapporteur on the rights of indigenous peoples. I nonetheless believe that progress has been made in a context that already had many existing difficulties and limitations. Together with the Indigenous Peoples, we have made the most of the use of virtual platforms. Although we have been unable to make in situ visits, we have monitored the protests and received complaints about violations of Indigenous Peoples’ human rights. I have also had the opportunity to participate in academic conferences and establish dialogue with Indigenous organisations in Latin America, Asia, Africa and the Arctic. All this has been possible thanks to these virtual spaces.

ID: What complaints have you received during the pandemic?

FCT: I have received information about the criminalisation of Indigenous human rights defenders in Chile, where the anti-terrorist law has been applied in their regard. A little-known case regarding the imprisonment of Indigenous individuals in Panama has also been brought to my attention: there is an agreement between the government, the AES Corporation and the Ngöbe people for the construction of the Chan-75 dam on their territory but, when the people demand compliance, they are criminalised and their leaders persecuted. Similar situations are occurring in Costa Rica, Guatemala, Mexico, the Philippines and Bangladesh, where the main element of the conflicts is encroachment into Indigenous territories, criminalisation, persecution, lack of access to justice, imprisonment, murders and kidnappings, falsification of evidence, and the sanctioning of laws that are applicable only to Indigenous Peoples for crimes of sedition or terrorism.

ID: What do you think will become of virtual spaces in a post-pandemic world?

FCT: Virtual meetings are here to stay. The Indigenous organisations will continue to use them for their own benefit. But, from my point of view, I feel it important to emphasise the need for in situ visits to the countries as this is the only way to get to see the situations that Indigenous Peoples are experiencing. It is also important for maintaining a constructive dialogue with state authorities on what is being done and what needs to be done to respect the rights of Indigenous Peoples.

ID: What has the link with states been like during the pandemic?

FCT: Work with states has been more fluid because we receive daily information on what is happening in the countries. Indigenous organisations have used the International Human Rights System and we have had the possibility of collaborating and unifying our positions among the different rapporteurships, signing documents jointly. Nonetheless, not being able to make physical visits to the countries has been a great limitation to my mandate as Rapporteur because, when you carry out visits, you can interact with the entire community. I hope I will be able to act flexibly in 2021 to promote respect for and protection of the rights of the world's Indigenous Peoples.

ID: Do you not think virtual spaces with states are open to confusion?

FCT: The need to comply with certain formalities as regards meetings or dialogues with the Special Rapporteur should be noted. Nowadays, it is very easy to call a Rapporteur up to ask them to participate in a virtual meeting or for states to ask me to participate in their official events. Indeed, a Rapporteur needs to talk to the authorities responsible for ensuring the rights of Indigenous Peoples, as well as to those responsible for implementing relevant public policies. Participation in official virtual events alone can, however, be misleading. Some states believe that simply by inviting a Rapporteur to participate in a virtual dialogue, they are fulfilling their obligations. This is not the case: as members of the United Nations system, they are obliged to account for the human rights situation of their citizens and, in this particular case, the Indigenous Peoples.

ID: Do you not think there has been less space for dialogue with states given that they have not been under pressure to respond to your recommendations for Indigenous Peoples?

FCT: States are not always willing to open their doors to allow Rapporteurs to visit. And yet visits serve not only to learn about violations of the rights of Indigenous Peoples or their lack of implementation but also to observe, follow up and report on the positive measures being taken by states with regard to respecting the rights of Indigenous Peoples. This is why it is important we resume our country visits this year while, obviously, respecting and taking all necessary sanitary measures.

ID: This year marks the 20th anniversary of the establishment of the mandate of the Special Rapporteur on the rights of indigenous peoples. Where will your priorities lie?

FCT: In terms of thematic studies, we will follow up on the report that I presented to the General Assembly in 2020 on the effects of COVID-19 on Indigenous Peoples and the states’ responses in this regard. This will primarily be a recovery period. In this context, we will focus on how states have taken Indigenous knowledge into account and how free, prior and informed consultation has been implemented. Despite their public declarations, very few states have taken Indigenous Peoples into consideration when dealing with the coronavirus. We are also working on a questionnaire that will form the basis of a report to be presented to the Human Rights Council in September. This won’t focus on the negatives but rather on state initiatives that have taken Indigenous Peoples into account in the recovery. In every sense of the word. Finally, I will look at Indigenous migration, both internal and external, and we will produce two manuals on the situation of Indigenous women and children.

ID: Will you continue to work on issues facing urban Indigenous people?

FCT: There is still a pre-conception that Indigenous people live in rural areas but there are many who are now settled in what are large cities. In addition, historical circumstances of forced and illegal evictions, together with persecution in times of political upheaval, have forced some Indigenous people to migrate from their territories to the city. Now, these cities have become their place of survival and the Indigenous presence there is increasing. In this context, they are also discriminated against for being urban, because of the idea that Indigenous people only live in rural areas. It has become clear to me that urban Indigenous people have suffered disproportionately during this pandemic. I will present a report on urban Indigenous people to the General Assembly in October 2021.

ID: In recent times, Indigenous communities have denounced non-compliance with free, prior and informed consultation.

FCT: One of my objectives is to follow up on the lack of state compliance with obtaining consent. During the pandemic, in particular, together with businesses, they have taken advantage of the lockdown and social distancing measures to avoid complying with this mandatory requirement. They have even attempted to avoid conducting environmental impact studies: again a mandatory requirement in all states. States seem to view consultation as a mere administrative procedure rather than an Indigenous right established by international human rights standards.

ID: Why is this happening?

FCT: Companies and states perceive consultation as a hindrance to undertaking or implementing projects when, in fact, it is the opposite: it is an instrument that seeks to avoid conflicts and human rights violations. I share the opinion of the previous Rapporteur, Victoria Tauli-Corpuz, in this regard: states cannot continue to make excuses for their lack of implementing regulations this area. In fact, I believe it is the implementation of a consultation’s results that needs to be regulated rather than the consultation itself. I would also like to see consultation protocols developed. On this 20th anniversary, we invite Indigenous Peoples to raise the profile of the role and objectives of the Rapporteurship. To take up the mandate as their own and, of course, to use it to defend their rights.

Lola García-Alix and Alejandro Parellada are senior advisors to the International Work Group for Indigenous Affairs (IWGIA).