The Indigenous World 2022: Business and Indigenous Peoples’ Rights

2021 marked a decade since the UN Guiding Principles on Business and Human Rights (GPs)[1] were approved by the Human Rights Council. The GPs set out the obligations of states under international human rights law, including that applicable to Indigenous Peoples, and the responsibilities of business enterprises with regard to the same rights, in the context of economic activity. Ten years on from adopting the GPs, the UN Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (WG) initiated a process of dialogue by gathering input from states, businesses, civil society and Indigenous Peoples with which to analyse the implications of the GPs for the protection of human rights in the context of business activity.

The objective of the requested inputs was to define a roadmap for their direction and implementation over the coming 10 years (UNGPs 10+ Roadmap). It was in this context that IWGIA commissioned an analysis on the implications of the GPs for Indigenous Peoples over the last 10 years in the context of business activity, which was submitted to the WG in 2021. This analysis, entitled The UN Guiding Principles on Business and Human Rights and Indigenous Peoples. Progress achieved, the implementation gap and challenges for the next decade[2] drew on interviews with Indigenous Peoples’ representatives from different geographical regions and on documentary materials.[3] This section presents a summary of the main findings of the report, its conclusions and recommendations, as submitted to the WG for consideration. A critical analysis is also made of the WG's proposal for implementing the GPs over the next decade.


Progress achieved

Although Indigenous Peoples’ human rights continue to be severely affected by business activities, particularly those of an extractive nature, it is possible to see that 10 years of the GPs has resulted in some notable progress. Over the last decade, 13 of the 24 states that have developed National Action Plans on human rights and business have thus referenced Indigenous Peoples and their rights. Indigenous Peoples’ participation in their production and implementation has, however (with some exceptions such as Peru), been deficient.

Progress has also been made in state legislation in different regions (Kenya in Africa, Nepal in Asia and Peru in Latin America) enabling peoples to register their territories and regulating consultation on development plans that affect their communities.

Some countries, such as France, Germany and the Netherlands, have introduced legislation on mandatory human rights due diligence, or are in the process of doing so, which could result in the protection of Indigenous Peoples’ rights. A similar process is underway in the European Union to establish mechanisms that will provide access to remedy for corporate impacts on human and Indigenous rights. The states of Latin America and the Caribbean have signed and ratified the Escazú Agreement,[4] the first of its kind to recognise the right to access environmental information, participation in environmental decisions and access to justice in environmental matters, with specific reference to Indigenous Peoples.

With regard to mechanisms for redressing the damage caused by businesses, while court rulings in countries such as Colombia and Canada have recognised the right of Indigenous Peoples to free, prior and informed consent (FPIC) with regard to business activity, and although Indigenous Peoples’ right to be consulted on projects that affect them has been reaffirmed in Nepal and India, it is clear that the rights of these peoples continue to be severely limited. The role of national human rights institutions (NHRIs) as extrajudicial mechanisms for redressing corporate abuses of Indigenous rights through their research, documentation and litigation work is also noteworthy.

As for businesses, we identified multi-stakeholder initiatives which, at least formally, have taken on board their responsibility to protect the rights of Indigenous Peoples in accordance with the GPs. Such is the case of the large food and drinks companies, many of which have adopted important policy changes such as no tolerance for land grabbing and a requirement to obtain FPIC in specific circumstances. In the case of the extractive industries, the Initiative for Responsible Mining Assurance (IRMA), which proposes only certifying new mines if they have Indigenous Peoples’ FPIC, is notable as is the International Council on Mining and Metals (ICMM), which has committed its members to the principle of FPIC for Indigenous Peoples. There is also the initiative of the Forest Stewardship Council (FSC), a multi-stakeholder forest sector initiative that has incorporated protection of customary land rights and Indigenous Peoples’ FPIC into its new standards. Implementation in practice, however, has been insufficient.

The GPs have also had a significant impact on international organisations. In the UN system, this impact can be seen in declarations, general comments and observations and jurisprudence on business and human rights. The work of Special Procedures, including the Special Rapporteur on the rights of indigenous peoples, and specialised agencies such as the FAO, with the FAO Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (2012), are noteworthy in this regard.[5] The Committee on the Elimination of Racial Discrimination and the Committee on Economic, Social and Cultural Rights have also made specific reference to the protection of Indigenous rights in the context of economic activity in their general comments and observations.

Of particular importance for the protection of Indigenous rights over the last decade is the creation within the UN system of the Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with respect to Human Rights with the aim of drafting an international legally binding instrument to regulate the activities of transnational corporations and other business enterprises. In the second revised draft produced by the Intergovernmental Working Group in 2020,[6] Indigenous Peoples are mentioned five times with explicit reference to the UNDRIP. They are mentioned three times in the context of other vulnerable groups. The fifth mention, however, is a major improvement compared to the previous version of Article 6 (Prevention) as it now specifically notes FPIC. Nevertheless, it calls it a “standard” and not a right, and includes it as a requirement that companies must comply with during consultation with Indigenous Peoples.

A similar impact of the GPs is visible in the Inter-American Human Rights System, whose Commission adopted a resolution in 2014 on the Promotion and Protection of Human Rights in Business, recognising the value of the GPs and urging member states to follow and disseminate their principles. In addition, in 2015 it published a report on Indigenous Peoples, Afro-descendant communities, and protection of their human rights in the context of natural resource extraction, exploitation and development.[7]

With regard to international development banks, the International Finance Corporation is notable, as its Performance Standards include the requirement for FPIC under those circumstances provided for by the UNDRIP. In particular, it prohibits the involuntary relocation of Indigenous Peoples.

As for Indigenous Peoples themselves, the creation of their own protocols on FPIC is noteworthy, of which there are around 50 across all continents, many of them in Latin America and several of which have been recognised by courts of justice in Latin America and Asia: these reaffirm the State's duty to consult Indigenous Peoples and their right to grant or withhold their FPIC in the face of corporate projects.

Civil society organisations, both at the international and domestic level, have also been instrumental in implementing the GPs and in identifying gaps and challenges in the relationship between business and human rights. Without their involvement in monitoring the implementation of the GPs, developing and monitoring National Action Plans and documenting human rights violations, the impact of business activity on human rights would have been far more severe. The following are particularly notable: the documentation and monitoring work undertaken by the Business & Human Rights Resource Centre; the International Federation for Human Rights (FIDH) for promoting the responsibility of companies when human rights are affected; and the Zero Tolerance Initiative (ZTI) for denouncing the violence companies exert against Indigenous and environmental defenders.

Gaps and challenges

Despite this progress, it can still be seen that Indigenous Peoples continue to be one of the groups whose rights are most affected by corporate activities in almost all regions of the world. Far from diminishing over the last decade, the impact of business activities –particularly the extractive industry– on Indigenous Peoples’ lands, territories and resources has only increased. This is partly due to a proliferation of international, regional and bilateral investment agreements that protect the interests and rights of investors. Such agreements have encouraged investments by transnational corporations from the Global North (including China and Russia) into the countries of the Global South, severely affecting Indigenous Peoples. Despite the inclusion of human rights clauses in agreements concluded by the European Union, Canada and the United States, the investments generated by these agreements continue to seriously affect the rights of Indigenous Peoples. As the former Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, said, there are “an alarming number of cases where foreign investment projects in the mining, oil and gas sectors have resulted in serious violations of land, Indigenous Peoples’ self-governance and cultural rights”.[8] The lack of legal recognition or enforcement of Indigenous groups’ rights, especially land rights, enables the expropriation of land to facilitate investments in their territories.

As the WG has noted in its reports, Indigenous Peoples are disproportionately affected by large-scale projects, with significant negative impacts on their environment, on their right to health, and on their livelihoods and cultural ways of life.[9] This also reveals a lack of meaningful consultation with these peoples and the failure of companies to comply with the requirement of FPIC on their lands.[10] In other cases, consultations are not carried out prior to decisions that may affect Indigenous Peoples’ rights or prior to the granting of concessions for potential mining activities on Indigenous lands.[11] Finally, Indigenous rights defenders are at serious risk of being attacked, killed, criminalised, abused and subjected to smear campaigns because of their work to promote and protect human rights in the context of development and investment projects.[12]

This helps to explain the growing number of conflicts being created by current or proposed business projects on Indigenous lands or territories. Such conflicts can be found in almost every region of the world. A recent report focusing on Indigenous Peoples and the Sustainable Development Goals (SDGs) in Latin America identified 1,223 conflicts affecting Indigenous land rights triggered by the imposition of development or investment projects in 13 countries in the region between 2015 and 2019. Forty-three percent involved mining activities, 20% hydrocarbon projects, and 19% power plants. As noted, disputes are often accompanied by acts of violence against defenders of Indigenous Peoples’ rights. In addition, the report identified 232 Indigenous land rights defenders in nine Latin American countries who had been killed over the same five-year period (ECLAC, 2020).[13]

This data was backed up by Global Witness in its 2020 report, which identifies a total of 212 environmental and land rights defenders –two-thirds of them from Latin America– murdered in 2019. While Indigenous Peoples account for 5% of the world's population, they represent 40% of its murder victims. Similarly, over the last five years, more than a third of the victims were from Indigenous Peoples. The same report states that, of the killings last year, 50 were committed in the context of mining, followed by 34 in agribusiness (Global Witness, 2020).[14] Alongside the killings we find death threats, beatings, acts of torture and cruel treatment, all generally committed in collusion with the State and businesses. We also find cases of criminalisation of Indigenous rights defenders through the application of special legislation such as anti-terrorist laws. It should be noted that the vast majority of human rights violations committed against Indigenous rights defenders go unpunished.

All of the above demonstrates that, despite their universal acceptance, the GPs are far from effective in ensuring respect for and protection of the human rights of Indigenous Peoples around the world in the context of business activity. This is, in part, because their interpretation and operationalisation arenot firmly based on the rights enshrined in the UNDRIP and ILO Convention 169. Nor are they grounded in the interpretation of these rights provided by the jurisprudence of relevant UN and regional mechanisms, such as the recent recommendations of the Committee on the Elimination of Racial Discrimination made to several states in which transnational corporations are operating.

Most companies have taken insufficient measures to meet their independent responsibility to avoid affecting Indigenous Peoples’ rights either directly or indirectly. Neither states nor companies have ensured sufficient access to effective remedy to prevent violations of the rights of Indigenous communities or to promote remedy when those rights have been violated in the context of corporate activities, whether or not they persist over time.

Consequently, to ensure that Indigenous Peoples’ rights are adequately protected and respected, the next 10 years will require far greater commitment on the part of states, companies, international organisations, civil society and Indigenous Peoples themselves, who have so far driven the implementation of the GPs, and to whom a series of specific recommendations are made. At the core of this effort must be consideration of (among other internationally recognised rights of Indigenous Peoples) self-determination, participation, consultation and FPIC, and the right to redress and effective compensation for Indigenous rights affected. Finally, everything seems to indicate that, in order to ensure the rights of Indigenous Peoples in the context of business activities, it is essential to go further than just the GPs. The approval of the Legally Binding Instrument regulating the activities of transnational corporations and other business enterprises and human rights, which is currently being drafted within the UN system, will be of particular relevance in this regard.

The stocktaking report published by the UN Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises Corporations (22 April 2021)[15]

Being only 22 pages long, this report lacks the level of detail able to address specific issues facing Indigenous Peoples. It does mention Indigenous Peoples in four places, however, each time lumped together with other groups such as children, women and LGBTI+, human rights defenders, religious and ethnic minorities. Specific issues such as Free, Prior and Informed Consent, land rights, criminalisation, land grabbing or extractive industries are not mentioned.

The report considers there is insufficient integration of human rights due diligence into multilateral development banks and in the UN system.[16] It highlights the dynamic that is aimed at adopting mandatory due diligence legislation in several European countries.[17] It is in this context that it makes fleeting mention of the Legally Binding Instrument on business and human rights, which has been under development since 2014, and it also notes that many states are still wary of introducing binding regulations regarding human rights due diligence, as this would put their domestic businesses at a perceived comparative disadvantage.[18]

Both the quality and quantity of national action plans on business and human rights are described as insufficient.[19] The embedding of the Guiding Principles in the international economic policies of states or in State-controlled economic sectors (“State-business nexus”) “has not seen much progress”.[20] Likewise, the Guiding Principle’s uptake by international development institutions and in multilateral processes such as the global policy processes related to climate change is still “concerningly little”. In the section on pillar II, the report gives a relatively positive appraisal of the level of corporate self-commitment to human rights. It notes harassment and persecution of human rights defenders but also points out that many companies have “clarified their position” in this regard, which it obviously sees as a meaningful step.[21] It is more critical of corporate abuse of the judicial system to curb civil participation through strategic lawsuits. In the financial sector, it sees

a wide margin for improvement to reach the potential of investment institutions and Environmental and Social Corporate Governance (ESG) data providers to leverage better human rights performance by companies. […] A key challenge is that most financial actors fail to connect human rights standards and processes with ESG criteria and investment practices because of a prevailing lack of understanding in the sector that social criteria, and many environmental and governance indicators, reflect human rights issues.[22]

This is further compounded by a lack of common standards, a gap which the EU “taxonomy regulation” is supposed to close by providing a framework in which to facilitate sustainable investment. Overall, movement is slow. Four out of five banks have met less than half of the requirements of the Guiding Principles. Private equity and venture capital firms generally lag far behind banks. The report bemoans a lack of data that would enable the actual human rights performance of companies to be measured, as the outcomes and results of ESG are not properly monitored in general.[23] Companies need to move “from measuring what is done to measuring what is achieved”.

Looking at the remedies pillar of the Guiding Principles, the report identifies the strongest uptake by the judicial system in Latin America, specifically citing Colombia and Peru, while their impact on the courts remains generally very limited. It cites a number of landmark court rulings i.e. in the Netherlands and Canada, which indicate a growing willingness to hold large enterprises accountable. The deliberations on the remedies pillar conclude that there is “a wide range of options for remedies but not enough actual remedy”.[24]

What the report largely fails to do is to look at whether there has been any measurable impact on the human rights situation on the ground; it explicitly states that “quantifying the ‘success’ of the Guiding Principles is fundamentally a futile exercise”.[25] It does not therefore present any disaggregated data on the human rights situation around the world. It does, however, identify the rise of mandatory measures in some states as a success that “will undoubtedly accelerate both uptake and progress”.

On the basis of this report, on 29 November, the Working Group launched its roadmap for the next decade.[26]

José Aylwin, Citizen Observatory, Chile and Johannes Rohr, Institute for Ecology and Action Anthropology (INFOE, Germany)

 

This article is part of the 36th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2022 in full here

 

Notes and references

[1] UN – OHCHR. The Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework. New York and Geneva: UN – OHCHR, 2011. https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf

[2]José Aylwin, José and Johannes Rohr. The UN Guiding Principles on Business & Human Rights and Indigenous Peoples: Progress achieved, the implementation gap and challenges for the next Decade. Copenhagen: IWGIA, 2021. https://www.iwgia.org/en/resources/publications/305-books/4419-the-un-guiding-principles-on-business-human-rights-and-indigenous-peoples-%E2%80%93-progress-achieved,-the-implementation-gap-and-challenges-for-the-next-decade.html

[3] The Indigenous representatives interviewed in this report were: Pavel Sulyandziga, International Indigenous Fund for development and solidarity "Batani" , USA/Russia; Elifuraha Laltaika, Tumaini University Makumira, Tanzania; Manoj Aathpahariya & Durga Yamphu, LAHURNIP, Nepal; Jorge Nahuel, lonko of the Mapuche Confederation of Neuquén, Argentina; Jamer López, representative of AIDESEP, Peru; Guangchun Gangmei, Shohel Hajong, Frederic Wilson of AIPP; India, Malaysia, India; Mali Ole Kaunga, IMPACT, Kenya; Sergio Cubillos, president of the Council of Atacameño Peoples, Chile; Luis Vittor, advisor to the Andean Coordinating Body of Indigenous Organisations, Peru. This was in addition to Dante Pesce, Chair of the UN WG on the subject.

[4] CEPAL. Acuerdo Regional sobre el Acceso a la Información, la Participación Pública y el Acceso a la Justicia en Asuntos Ambientales en América Latina y el Caribe. Santiago: Naciones Unidas, 2018. https://repositorio.cepal.org/bitstream/handle/11362/43595/1/S1800429_es.pdf

[5] CFS – FAO. Directrices voluntarias sobre la Gobernanza responsible de la tenencia de la tierra, la pesca y los bosques en el contexto de la seguridad alimentaria nacional. Roma: FAO, 2012. https://www.fao.org/3/i2801s/i2801s.pdf

[6] OHCHR. “OEIGWG Chairmanship Second Revised Draft 06.08.2020. Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises.” https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session6/OEIGWG_Chair-Rapporteur_second_revised_draft_LBI_on_TNCs_and_OBEs_with_respect_to_Human_Rights.pdf

[7] CIDH - OEA. Pueblos indígenas, comunidades afrodescendientes y recursos naturales: Protección de derechos humanos en el contexto de actividades de extracción, explotación y desarrollo / [Preparado por la Comisión Interamericana de Derechos Humanos]. CIDH, 2015. http://www.oas.org/es/cidh/informes/pdfs/industriasextractivas2016.pdf

[8] United Nations Human Rights Council, 2016. https://www.ohchr.org/en/issues/business/pages/wgcountryvisits.aspx

[9] Report on the visit to Thailand (2018) A/HRC/41/43/Add.1 Available at: https://digitallibrary.un.org/record/3812781?ln=en

[10] Report on the visit to Canada (2017) A/HRC/38/48/Add.1 available at: https://digitallibrary.un.org/record/1629734?ln=en

[11] Report on the visit to Peru (2017) A/HRC/38/48/Add.2 available at: https://digitallibrary.un.org/record/1629733?ln=en

[12] Report on the visit to Honduras (2019) A/HRC/44/43/Add.2 available at: https://digitallibrary.un.org/record/3865573?ln=en

[14] “Global Witness reports 227 land and environmental activists murdered in a single year, the worst figure on record.” Global Witness, September 13, 2021. https://www.globalwitness.org/en/press-releases/global-witness-reports-227-land-and-environmental-activists-murdered-single-year-worst-figure-record/

[15] UN Working Group on Business and Human Rights.  Guiding Principles on Business and Human Rights at 10: taking stock of the first decade. A/HRC/47/39. Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises. Geneva, June 2021.   https://www.ohchr.org/Documents/Issues/Business/UNGPs10/Stocktaking-reader-friendly.pdf

[16] Paras 23-28

[17] Paras 33-40

[18] Paras 34-37

[19] Para 43

[20] Para 49

[21] Para 67-68

[22] Para 79

[23] Para 87

[24] Para 107

[25] Para 113

[26] UN Working Group on Business and Human Rights. Raising the Ambition - Increasing the Pace. UNGPs 10+. A Roadmap for the Next Decade of Business and Human Rights. United Nations: Geneva, November 2021. https://www.ohchr.org/Documents/Issues/Business/WG/ungps10plusroadmap.pdf

Tags: Business and Human Rights , Global governance

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