• International Processes and Initiatives

The Indigenous World 2021: Business and Indigenous Peoples' Rights

2020 was a critical year for human rights around the world. Added to the restrictions that many states had already placed on the exercise of these rights both in the global North and South, triggering the protests referred to in The Indigenous World last year, restrictions were enforced this year in relation to the COVID-19 pandemic. The pandemic has critically affected the most vulnerable sectors of society, and Indigenous Peoples with particular intensity. This is due not only to the difficulties they face in accessing public health services, and the refusal of states to recognise Indigenous Peoples' own care strategies, including self-isolation in their rural communities, but also because their territories continue to be exposed to business activities, particularly those of an extractive nature.

This is despite complaints from Indigenous Peoples themselves and the recommendations of international bodies aimed at preventing business activity from endangering Indigenous Peoples’ health. This is paradoxical at a time when the UN Guiding Principles on Business and Human Rights (hereinafter Guiding Principles), which promote the duty of states to protect human rights and that of businesses to respect them in the context of economic activity, including Indigenous Peoples’ rights, have been in force for 10 years. In this section, we will refer to the adverse effects COVID-19 has had on Indigenous Peoples and their rights, particularly those caused by persistent business activity on their territories with state acquiescence. We will also refer to the debate that has this year evolved around the critical relationship between business and human rights and the reflections that have arisen in the context of the UN Working Group’s call in this regard, at a time when the Guiding Principles have been in force for 10 years.

 

Impacts of business on Indigenous Peoples’ rights in the context of COVID-19

According to all the evidence, Indigenous Peoples have been one of the sectors worst affected by COVID-19 worldwide. While this is not a new phenomenon for Indigenous Peoples, whose populations have long been decimated by disease brought to the Americas, Africa and Asia by European colonisers over the last few centuries, the pandemic has had devastating consequences for them.

In his report to the UN General Assembly on the coronavirus pandemic and Indigenous Peoples, the Special Rapporteur on the rights of indigenous peoples, Francisco Calí Tzay, pointed out the risks it poses for their population:

Although representing only 6 per cent of the world population, indigenous peoples are among the most harshly affected indigenous societies, already facing numerous existential threats, face higher risks of dying of the disease, of experiencing discrimination and a disproportionate impact as a result of confinement measures, and of being left without support to defend their peoples from intensifying rights violations even as the pandemic rages.[1]

This reality is the result of various phenomena, including the difficulties Indigenous people experience in accessing public health services, and states’ lack of knowledge and support for communities’ own health protection systems, such as self-isolation, aimed at preventing the virus from spreading onto their territories from outside. Closely related to this, the spread of the virus across Indigenous territories has been a consequence of ongoing business activities, particularly those of an extractive nature which, often with government blessing, have continued to undertake their activities with all the risks this implies for the health of the Indigenous population. This seems to be the same no matter where in the world these peoples live. As Calí Tzay comments in his report:

In Asia and Latin America, indigenous peoples have expressed a deep feeling of injustice regarding the fact that large companies appear to be freely continuing their activities and encroaching on indigenous lands while restrictions on the indigenous peoples’ own movement and freedom to use and protect their lands is repressively enforced.[2]

In the case of Latin America, this situation was confirmed in a recent report on the pandemic and Indigenous Peoples in this region:

In most countries of the region, mining activities, hydrocarbon exploitation and agribusiness were quickly considered essential in the context of the health crisis and were therefore exempted from the restrictions imposed by governments to prevent spread of the disease. Extractive activities thus forcefully continued to attack Indigenous territories and have become vectors of transmission within them.[3]

This has been especially critical in the case of Indigenous Peoples in voluntary isolation in the Amazon and the Paraguayan Chaco, who are estimated to number some 200 and who, having had no previous contact with other sectors of the population, are being seriously affected by the virus, generally brought in by miners and loggers illegally entering their territories.[4]

Indigenous representatives from other regions of the planet, such as Africa, Oceania, North America and Eastern Europe, also identify continued business activity on Indigenous territories without the free, prior and informed consent (FPIC) of the affected peoples as one of the factors that has contributed to the spread of the pandemic among their communities.[5]

All of this has occurred in open disregard for the recommendations that various international human rights organisations have made to states urging them to refrain from introducing legislation or approving extractive or similar projects on Indigenous Peoples’ territories while the pandemic prevents them from being consulted and giving their consent.[6]

Indigenous voices in international business and human rights fora

The persistence over time and even the exacerbation of the serious impacts of business on the internationally-recognised rights of Indigenous Peoples in the context of the pandemic was one of the concerns raised by Indigenous Peoples in regional and global fora on business and human rights held during 2020. This situation is no coincidence since these peoples’ representatives identify business activities on their territories of traditional occupation, particularly that of transnational companies, as one of the main causes of the violation of their collective rights. Such violations include not only the right to their lands and territories and natural resources, and to the environment, but also to consultation and FPIC and, consequently, to their self-determination and autonomy.

In addition to demanding the immediate suspension of all extractive activities in or near Indigenous territories as a preventive measure during the pandemic, the suspension of all approvals of investment projects without effective consultation and FPIC processes, and respect for Indigenous rights defenders who are being persecuted, criminalised and murdered for defending their territories, the Declaration presented by Indigenous Peoples’ regional representatives at the 5th Regional Forum on Business and Human Rights in Latin America and the Caribbean in September 2020 stated that, as of 2021, the Guiding Principles had been in force for 10 years and:

...we recognize that they constitute an opportunity to demand urgent and necessary reforms from the States. They also serve to demand its compliance by companies, provided that they are accompanied by binding and effective national or international mechanisms to ensure access to justice and the right to compensation for damage.[7]

Indigenous Peoples attending the 9th Session of the UN Forum on Business and Human Rights likewise denounced the disproportionate adverse effects the pandemic was having on their communities, exacerbated by government policies that promote and support human rights violations by the business sector, together with the intimidation and repression of Indigenous rights defenders. In addition, they recommended that states stop using COVID-19 for the “... criminalization and persecution of human rights defenders and the illegal appropriation of Indigenous Peoples’ lands and territories”.[8]

They also recommended as more permanent measures:

Respect our right to Free, Prior and Informed Consent (FPIC) and to include our full and effective participation to constructively engage in processes that may affect our identities, lives, livelihoods and cultures, especially those related to our lands.[9]

Along the same lines they proposed:

Creat[ing] a UN monitoring and reporting mechanism on Business and Human Rights for Indigenous Peoples, where our grievances could be reported, corrected and redressed.[10]

Given the centrality of the right to FPIC in protecting Indigenous Peoples from business activity, it is worth highlighting the progress made in 2020 in the process of drafting the UN Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business Enterprises. The second draft, produced by the Intergovernmental Group in charge of its preparation, thus included an explicit reference to Indigenous Peoples’ right to FPIC in the context of these companies’ activities. [11]

Another significant arena that was confirmed in 2020 as an opportunity for opening the door to introducing transformations for a more effective protection of Indigenous Peoples’ rights in the face of business activity was the call made by the UN Working Group on Business and Human Rights on the 10th anniversary of the Guiding Principles to evaluate their implementation and further develop them for the next decade. The call (Guiding Principles +10), which included a stakeholder consultation during 2020, should conclude with the production of a report for the Human Rights Council and a roadmap for the next decade.[12]

Echoing this call, and based on existing documentation and interviews with Indigenous representatives from various regions of the world, IWGIA prepared a report identifying some advances and gaps in the application of the Guiding Principles in relation to Indigenous Peoples.[13]

Among the advances, IWGIA's report notes legislative developments in some states with regard to Indigenous Peoples' rights, such as land protection and the right to consultation, as well as the still incipient inclusion of Indigenous Peoples and their rights in some National Human Rights and Business Plans. The role of the courts in various states, which have affirmed the rights of Indigenous Peoples over their lands of traditional occupation and to FPIC, is also assessed as positive. The commitments made to these peoples’ rights by some business associations are also noted, although implementation in this regard is not so clear. The same is true of the protocols developed by Indigenous Peoples on FPIC, which are being applied in various geographical contexts.

Notwithstanding these advances, the report notes that 10 years on from the adoption of the Guiding Principles, Indigenous Peoples are still among the groups most adversely affected by business activity. Among the implementation gaps, the report identifies:

States have not taken sufficient steps to protect against abuse of indigenous peoples by business enterprises nor to prevent, investigate, punish and redress such abuses through effective policies, legislation, regulations and adjudication as demanded by the UNGP. Most business enterprises have not adopted measures which are sufficient to fulfil their independent responsibility to avoid harming the rights of indigenous peoples directly or indirectly. Neither states nor business enterprises have ensured sufficient access to effective remedies to prevent violation of indigenous peoples’ rights, or to provide remediation when those rights have been breached in the context of business activity, whether these violations are ongoing or not.[14]

According to IWGIA's report, if greater respect for and protection of the rights of Indigenous Peoples are to be achieved, in particular the right to self-determination, consultation and FPIC, as well as the right to remedy and effective redress, the next decade of implementing the Guiding Principles will require a much greater commitment from states, businesses and other stakeholders. The report therefore concludes by recommending that states must strengthen their legislation and include Indigenous rights in National Action Plans and in international trade agreements for the protection of their rights. It recommends that companies make an explicit commitment to these rights in their policies, that they respect FPIC, and conduct rights impact assessments prior to their operations. It also recommends that international entities make progress in the processes underway, such as that aimed at producing the binding treaty, with an express recognition of the rights of these peoples, and greater monitoring of violations of the rights of Indigenous defenders in the context of business activity. To Indigenous Peoples, it recommends the strengthening and development of their own FPIC protocols in the face of business activity; and to civil society, the documentation and monitoring of the implementation of the Guiding Principles to ensure the protection of Indigenous Peoples’ rights.

We hope that 2021 will be a better year for Indigenous Peoples, that the pandemic can be overcome both globally and in their communities, and that developing state and international processes will allow for greater protection of their rights from business activity.

 

José Aylwin is Coordinator of the Globalisation and Human Rights Programme of Observatorio Ciudadano (www.observatorio.cl).

This article is part of the 35th 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 2021 in full here

 

 

Notes and references

[1] United Nations, General Assembly, “Report of the Special Rapporteur on the rights of indigenous peoples, José Francisco Calí Tzay”. A/75/185, 20 July 2020, para. 5. Available at https://undocs.org/en/A/75/185

[2] Ibid., para. 87.

[3] Economic Commission for Latin America and the Caribbean (ECLAC) and others. El impacto del

COVID-19 en los pueblos indígenas de América Latina-Abya Yala: entre la invisibilización y la resistencia colectiva. [In Spanish only]. Santiago, Economic Commission for Latin America and the Caribbean (ECLAC), 2020. Available at: https://www.cepal.org/es/publicaciones/46543-impacto-covid-19-pueblos-indigenas-america-latina-abya-yala-la-invisibilizacion

[4] Ibid.

[5] See, in this regard, interviews with representatives of Indigenous Peoples from all regions of the world in DOCIP: “Informing about the rights of Indigenous Peoples”. UPDATE, No. 115, December 2020. Available at: https://cendoc.docip.org/collect/upd_en/index/assoc/HASH203b.dir/Upd115_eng.pdf

[6] See United Nations, General Assembly, “Report of the Special Rapporteur...”. 20 July 2020. See also Inter-American Commission on Human Rights, “Pandemic and Human Rights in the Americas. Resolution 1/2020.” 2020. Available at https://reliefweb.int/sites/reliefweb.int/files/resources/Resolution-1-20-en.pdf

[7] Business & Human Rights Resource Centre, “Declaration of the Indigenous Peoples Participating in the V Regional Forum on Business and Human Rights for Latin America and the Caribbean.” 2020. Available at https://www.business-humanrights.org/documents/19211/DECLARATION_OF_THE_INDIGENOUS_PEOPLES_PARTICIPATING_IN_THE_V_REGIONAL_FORUM_ON_dwGkRqC.pdf

[8] Statement made by the Indigenous Caucus during the 9th session of the Forum on Business and Human Rights. (16 to 18 November 2020) p. 25. Available at: https://cendoc.docip.org/collect/upd_en/index/assoc/HASH203b.dir/Upd115_eng.pdf

[9]Ibid.

[10] Ibid., p.24.

[11] FIDH. “Second Revised Draft of Binding Treaty Reflections on the text in preparation of the 6th Session of the IGWG”. 2020. Available at https://www.fidh.org/IMG/pdf/fidh_reflection_second_revised_draft_prior_to_6th_session.pdf

[12] United Nations (United Nations Working Group on Business and Human Rights) “UN Guiding Principles on Business and Human Rights at 10. Business and human rights: towards a decade of global implementation”. Available at

https://www.ohchr.org/Documents/Issues/Business/UNGPsBHRnext10/CN.pdf

[13] IWGIA. “Submission to the UN Working Group on Business and Human Rights. UN Guiding Principles on Business and Human Rights +10 Process”. 2020. Available at https://www.iwgia.org/doclink/iwgia-submission-to-the-un-working-group-on-business-and-human-rights-un-guiding-principles-on-business-and-human-rights-10-process-2020/eyJ0eXAiOiJKV1QiLCJhbGciOiJIUzI1NiJ9.eyJzdWIiOiJpd2dpYS1zdWJtaXNzaW9uLXRvLXRoZS11bi13b3JraW5nLWdyb3VwLW9uLWJ1c2luZXNzLWFuZC1odW1hbi1yaWdodHMtdW4tZ3VpZGluZy1wcmluY2lwbGVzLW9uLWJ1c2luZXNzLWFuZC1odW1hbi1yaWdodHMtMTAtcHJvY2Vzcy0yMDIwIiwiaWF0IjoxNjE0Njc1ODUyLCJleHAiOjE2MTQ3NjIyNTJ9.-qoTh74tZQLN1SqgO2eej4imyOIJ41jhfM3Jp_FJ3Y8

[14] Ibid., p. 28.

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IWGIA - International Work Group for Indigenous Affairs - is a global human rights organisation dedicated to promoting, protecting and defending indigenous peoples’ rights. Read more.

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