Updating the Operational Guidelines

Changes that better reflect the rights and interests of indigenous peoples are slowly coming to the World Heritage system. Policy, for instance, has been updated to better address the role of indigenous peoples in identifying, protecting and managing their heritage; key documents include: (1) the UNESCO Policy on Engaging with Indigenous Peoples (2018), which addresses the United Nations Declaration on the Rights of Indigenous Peoples (2007) in UNESCO programmes; and, (2) the “Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention” (UNESCO 2015, hereafter “Sustainable Development Policy”), which promotes inclusive social and economic development along with environmental sustainability.

Even with these positive developments in policy, most of the key real-world decisions at the level of proposed and inscribed World Heritage sites are made by site managers that generally represent government; that is, States Parties, or signatories (“parties”) to the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage. In fact, since almost all sites are legislated protected areas, it is the relations that form and maintain those protected areas that largely define how indigenous peoples participate in and benefit from World Heritage.

The Operational Guidelines for the Implementation of the World Heritage Convention (hereafter “Operational Guidelines“) imposes requirements on States Parties in the identification of Tentative List sites, development of nominations to the World Heritage list for potential inscription, and in the ongoing management of inscribed sites, among other things. Following is a summary history of changes to the Operational Guidelines that address indigenous peoples and their heritage:

1998
Recognition of traditional protection in natural properties (Decision CONF 203 VIII.A.1), reflecting the decision to inscribe East Rennell, Solomon Islands (at that time, Solomon Islands had no legislated protected area designations).

2015
Inclusion of indigenous peoples as among stakeholders in protection and conservation of World Heritage (Paragraph 40, citing The United Nations Declaration on the Rights of Indigenous Peoples) and in Paragraph 123, in which participation of stakeholders is deemed essential (Decision 39.COM.11). Changes to Paragraph 123 also refer obliquely to free, prior and informed consent, encouraging States Parties “to demonstrate, as appropriate, that the free, prior and informed consent of indigenous peoples has been obtained, through, inter alia making the nominations publically available in appropriate languages and public consultations and hearings.” However, while making documents publicly available may help to inform the public in cases where such consent has in fact been obtained, this revision does not even encourage, much less require, States Parties to actually obtain consent; making nominations publicly available does not constitute securement of consent (updated in 2019, q.v.). The International Work Group for Indigenous Affairs (IWGIA) remarked this decision “must … be seen as the result of several years lobbying efforts by indigenous organizations” (IWGIA 2016: 11).

2017
Wholesale changes made to Periodic Reporting, through which States Parties are now asked to report on respect for the rights of indigenous peoples, including the extent to which indigenous peoples are involved in the listing, nomination, and management of existing and potential World Heritage sites (Decisions 41.COM.10A Art. 14 and 41.COM.11 Art. 11).

2019
Many changes directly relevant to indigenous people have been made under Decision 43 COM 11A to implement the Sustainable Development Policy and UNESCO Policy on Engaging Indigenous Peoples. Changes to paragraphs 64 and 123 now require, for the first time in World Heritage, States Parties to obtain the free, prior and informed consent of indigenous peoples in the development of Tentative Lists and nominations.

Changes for 2019 are presented here by Paragraph in the Operational Guidelines, with deletions shown as strikethrough and additions as underlined text.

Paragraph 12: States Parties are encouraged to “adopt a human rights based approach, and ensure gender-balanced the participation of a wide variety of stakeholders and rights-holders, including site managers, local and regional governments, local communities, indigenous peoples, non-governmental organizations (NGOs) and other interested parties and partners in the identification, nomination, management and protection processes of World Heritage properties.” Addition of “rights-holders” can be largely read as reference to indigenous (and other local) peoples, as per UNDRIP.

Paragraph 64, under “Tentative Lists”: “States Parties are encouraged to prepare their Tentative Lists with the full, effective and gender-balanced participation of a wide variety of stakeholders and rights-holders, including site managers, local and regional governments, local communities, indigenous peoples, NGOs and other interested parties and partners. In the case of sites affecting the lands, territories or resources of indigenous peoples, States Parties shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before including the sites on their Tentative List.

Paragraph 90, under “Integrity” (of natural properties): “Biological diversity and cultural diversity can be closely linked and interdependent and human activities, including those of traditional societies, and local communities and indigenous peoples, often occur in natural areas.”

Paragraph 111, under “Management Systems”: “common elements of an effective management system could include: a) a thorough shared understanding of the property, its universal, national and local values and its socio-ecological context by all stakeholders, including local communities and indigenous peoples.”

Paragraph 117, also under “Management Systems”: “States Parties are responsible for implementing effective management activities for a World Heritage property. States Parties should do so in close collaboration with property managers, the agency with management authority and other partners, local communities and indigenous peoples, rights-holders and stakeholders in property management by developing, when appropriate, equitable governance arrangements, collaborative management systems and redress mechanisms.”

Paragraph 119, under “Sustainable Use”: States Parties are asked to “promote and encourage the active effective, inclusive and equitable participation of the communities, indigenous peoples and other stakeholders”.

Paragraph 123, under “Preparation of Nominations”, corrects the ambiguity regarding free, prior and informed consent that was created in the 2015 changes, as noted above: “Effective and inclusive participation in the nomination process of local communities, indigenous peoples, governmental, non-governmental and private organizations and other stakeholders is essential to enable them to have a shared responsibility with the State Party in the maintenance of the property. States Parties are encouraged to prepare nominations with the widest possible participation of stakeholders and to shall demonstrate, as appropriate, that the free, prior and informed consent of indigenous peoples has been obtained, through, inter alia making the nominations publicly available in appropriate languages and public consultations and hearings.”

Paragraph 211, under “Objectives” (of encouraging support for the World Heritage Convention) and in reference to Article 5(a) of the Convention which “aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes”: “d) to increase equitable, inclusive and effective participation of local and national populations, including indigenous peoples, in the protection and presentation of heritage.”

Paragraph 214, under “Capacity-Building and Research”: “214bis. States Parties are encouraged to develop educational and capacity-building programmes that harness the reciprocal benefits of the Convention for heritage and society. The programmes may be based on innovation and local entrepreneurship, and aimed in particular at medium/small/micro scale levels, to promote sustainable and inclusive economic benefits for local communities and indigenous peoples and to identify and promote opportunities for public and private investment in sustainable development projects, including those that promote use of local materials and resources and foster local cultural and creative industries and safeguarding intangible heritage associated with World Heritage properties.

Paragraph 215 also adds: “States Parties are encouraged to support scientific studies and research methodologies, including traditional and indigenous knowledge held by local communities and indigenous peoples, with all necessary consent. Such studies and research are aimed at demonstrating the contribution that the conservation and management of World Heritage properties, their buffer zones and wider setting make to sustainable development, such as in conflict prevention and resolution, including, where relevant, by drawing on traditional ways of dispute resolution that may exist within communities.

Paragraph 239, under “Principles and priorities for International Assistance”: “In addition to the priorities outlined in paragraphs 236-238 above, the following considerations govern the Committee’s decisions in granting International Assistance:
e) the impact of the activity on furthering the Strategic Objectives or on the implementation of policies adopted decided by the Committee, such as the Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention or the Policy Document on the impact of Climate Change on World Heritage properties;
j) The inclusive nature of the activity, in particular as concerns gender equality and the involvement of local communities and indigenous peoples.”

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