The United Nations Declaration on the Rights of Indigenous Peoples A Manual for National Human Rights Institutions discrimination and provide for equality requires States to regulate the conduct of both public and private actors, as well as implement policies that provide for substantive equality.38 In the context of indigenous peoples, the right to equality and non-discrimination is viewed as offering a dual protection. On the one hand, it focuses on the conditions inherently required to maintain indigenous peoples’ way of life and, on the other, it focuses on attitudes and behaviour that exclude or marginalize indigenous peoples from the wider society.39 The Expert Mechanism has noted, however, that some States appear to perceive a conflict between the rights enshrined in the Declaration and the principle of equality. Some States are of the view that the principle of equality prohibits States from treating any one group differently from another group. In particular, some States interpret the right to equality as prohibiting specialized programmes that target indigenous peoples. However, the Expert Mechanism has stressed that, in order to achieve substantive equality, it may be necessary to treat indigenous peoples as a distinct group experiencing unique circumstances.40 Similarly, the Inter-American Commission on Human Rights has held that it is a well-established principle in international law that unequal treatment towards persons in unequal situation does not amount to discrimination.41 In the same vein, the Committee on the Elimination of Racial Discrimination has held that: … to treat in an equal manner persons or groups whose situations are objectively different will constitute discrimination in effect, as will the unequal treatment of persons whose situations are objectively the same.42 ILO Convention No. 169, the Inter-American Court of Human Rights and the United Nations treaty bodies have recognized the need for “special measures” for indigenous peoples. These are measures intended to remedy past discrimination or to correct contemporary inequalities. It has been held that special measures are required for indigenous peoples owing to their greater vulnerability, their historical experiences of marginalization and discrimination and the disproportionate impact that continuing human rights violations have on them.43 The Committee on Economic, Social and Cultural Rights has specifically held that, where discrimination of a particular group has been pervasive, States should take a systematic approach to eliminating such discrimination.44 The Committee on the Elimination of Racial Discrimination has drawn attention to the distinction between special and temporary measures for the advancement of ethnic groups on the one hand, and the permanent rights of indigenous peoples on the other.45 It has clarified that the rights of indigenous peoples, including rights to lands traditionally occupied by them, are permanent rights which should not be confused with temporary special measures. “States parties should carefully observe distinctions between special measures and permanent human rights in their law and practice. The distinction between special measures and permanent rights implies that those entitled to permanent rights may also enjoy the benefits of special measures.”46 38 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009) on non-discrimination in economic, social and cultural rights. 39 E/CN.4/1989/, para. 5. 40 A/HRC/EMRIP/2012/4, para. 87. 41 Saramaka People v Suriname, Inter-American Court of Human Rights, Judgement of 28 November 2007, Series C No. 172, para. 103. 42 General recommendation No. 32 (2009) on the meaning and scope of special measures in the International Convention on the Elimination of All Forms of Racial Discrimination. 43 For example, see Human Rights Committee, general comment No. 18 (1989) on non-discrimination, para. 10; 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; Inter-American Commission on Human Rights, Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System (OEA/Ser.L/V/II. Doc. 56/09, 2009), para. 18. See also the Preliminary Observations of the Inter-American Commission on Human Rights on its Visit to Honduras, 15-18 May 2010 (DOC OEA/Ser.L/V/II.,Doc.68), para. 26. 44 General comment No. 20 (2009) on non-discrimination in economic, social and cultural rights, para. 12. 45 CERD/C/NZL/CO/17 (2007), para. 15. 46 General recommendation No. 32 (2009) on the meaning and scope of special measures in the International Convention on the Elimination of All Forms of Racial Discrimination. 10 | Chapter 2: The content of the Declaration: Equality and non-discrimination; cultural integrity; and collective rights