Part I The United Nations Declaration on the Rights of Indigenous Peoples: Background, content and implementation Such an approach may often require States to devote greater resources to particularly vulnerable groups.47 When adopting measures to provide for substantive equality, it is important that States also facilitate the right of indigenous peoples to participate in decision-making in matters that concern them. States should ensure that special measures are designed and implemented on the basis of prior consultation with affected communities and the active participation of these communities.48 At the same time, the adoption of special measures should not undermine recognition afforded to indigenous peoples’ rights as distinct and permanent rights.49 Examples of special measures can be seen in the recognition afforded by some States to the collectivelyheld land rights of indigenous peoples.50 The African Commission on Human and Peoples’ Rights held in the Endorois case that such special measures are necessary in order to address the discrimination experienced by indigenous peoples under a property system that did not give recognition to the communal property rights of the Endorois people.51 In the Saramaka case, the Inter-American Court held that: … the aim and purpose of special measures required on behalf of members of indigenous and tribal communities is to guarantee that they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected by states.52 The Special Rapporteur on the rights of indigenous peoples has cautioned that a holistic approach must be adopted when developing special measures to address inequalities. In particular, policies that address substantive inequalities must not be limited to social and economic aspects of indigenous lives, but must also address the right to self-determination, the right to maintain distinct cultural identities and the right to maintain relationships with traditional lands.53 Thus, efforts to address substantive inequality must be adopted in collaboration with indigenous peoples, allowing them to take control of their own affairs, in accordance with their cultures and beliefs. The Declaration also draws special attention to the position of indigenous women and children and requires that they enjoy full protection against all forms of discrimination.54 In particular, all rights in the Declaration must be equally enjoyed by indigenous men and women.55 It is important to note that policies that discriminate against indigenous peoples may impact disproportionately on indigenous women owing to their gender.56 The Expert Mechanism has commended national-level programmes which, as well as seeking to redress imbalances between non-indigenous and indigenous peoples, specifically seek to ensure equality among indigenous men and women.57 In this regard, it is important that States empower indigenous women, ensure their participation in the design, delivery and monitoring of programmes, and build on indigenous women’s own initiatives. 47 Committee on Economic Social and Cultural Rights, general comment No. 20 (2009) on non-discrimination in economic, social and cultural right, para. 39. 48 Expert Mechanism on the Rights of Indigenous Peoples, “Final study on indigenous peoples and the right to participate in decision-making” (A/HRC/EMRIP/2011/2). 49 Expert Mechanism on the Rights of Indigenous Peoples, “Study on the role of languages and culture in the promotion and protection of the rights and identity of indigenous peoples” (A/HRC/EMRIP/2012/3), para. 87. See also Committee on the Elimination of Racial Discrimination, general comment No. 32 (2009) on the meaning and scope of special measures in the International Convention on the Elimination of All Forms of Racial Discrimination, para. 15. 50 Saramaka People v Suriname, Inter-American Court of Human Rights, Judgement of 28 November 2007, Series C No. 172; Yakye Axa Indigenous Community v Paraguay, Inter-American Court of Human Rights, Judgement of 17 June 2005, Series C No. 125; the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of Human Rights, Judgment of 31 August 2001, Series C No. 79. 51 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, African Commission on Human and People’s Rights, 276/2003 (4 February 2010), para. 196. 52 Saramaka People v Suriname, Inter-American Court of Human Rights, Judgement of 28 November 2007, Series C No. 172, para. 32. 53 “The situation of indigenous peoples in Australia” (A/HRC/15/37/Add.4, 2010), para. 53. 54 Article 22 (2). 55 Article 44. 56 Committee on the Elimination of Racial Discrimination, general recommendation No. 25 (2000) on gender-related dimensions of racial discrimination, para. 2. 57 A/HRC/EMRIP/2012/4, para. 69. Chapter 2: The content of the Declaration: Equality and non-discrimination; cultural integrity; and collective rights | 11