The UN has noted that:
“Indigenous peoples are inheritors and practitioners of unique cultures and ways of relating to people and the environment. They have retained social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live. Despite their cultural differences, indigenous peoples from around the world share common problems related to the protection of their rights as distinct peoples.
Indigenous peoples have sought recognition of their identities, way of life and their right to traditional lands, territories and natural resources for years, yet throughout history, their rights have always been violated. Indigenous peoples today, are arguably among the most disadvantaged and vulnerable groups of people in the world. The international community now recognises that special measures are required to protect their rights and maintain their distinct cultures and way of life.”
According to the UN, there are over 370 million indigenous people in Africa, the Americas, Asia, Europe and the Pacific. They comprise 5% of the world’s total population and at the same time they represent 15% of the world’s poorest people.+ Read more
In 2007 the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), (2007) was adopted by the UN General Assembly. The Declaration reflects provisions of the UN Charter (1945) and the Universal Declaration of Human Rights (1948), as well as legally binding provisions of core human rights instruments, including:
- the International Covenant on Civil and Political Rights (1966),
- the International Covenant on Economic, Social and Cultural Rights (1966),
- the International Convention on the Elimination of All Forms of Racial Discrimination (1965).
The UNDRIP is complemented and reinforced by ILO Convention No. 169 on Indigenous and Tribal Peoples (1989). The Convention on Biological Diversity (1992) also includes provisions protecting the rights of indigenous peoples.
According to UN Women, while the UNDRIP draws special attention to the needs and rights of indigenous women and calls for action to protect them from violence, indigenous women continue to face disproportionate levels of discrimination and violence.
Indigenous People are heavily dependent on lands and natural resources for their basic needs and livelihoods. Indigenous Peoples are one of the most vulnerable groups to the negative impacts of business activities. Mega infrastructure projects, investments in extractive industries and large-scale agriculture are increasingly posing a threat to the everyday life of indigenous peoples and their ability to maintain their land, livelihood and culture. In this regard, Marcos Orellana, the Special Rapporteur on toxics and human rights, has released a call for inputs in May 2022 from states and other stakeholders to inform his report on “The impact of toxics on Indigenous peoples”, to be presented at the 77th session of the United Nations General Assembly, in October 2022. It seeks to gain further understanding on “ways Indigenous peoples are exposed to toxics, ways that countries are preventing Indigenous peoples’ exposure to toxics, and the legal rights and remedies available to Indigenous peoples exposed to toxics and hazardous waste”.
“land acquisitions routinely take place without regard for the land and tenure rights of indigenous communities, leading to loss of land and property, involuntary resettlement and forced eviction, among others. Land acquisitions also take place with little consultation with potentially affected communities, and impact assessments are often conducted after land leases/contracts are signed. As a result, land conflicts have proliferated.”
Examples of this include that of the Massai people in Northern Tanzania who have been involved in land disputes with Ortello Business Corporation, resulting in the eviction of 25,000 men, women and children from their land. Another example is the construction of the Belo Monte Dam in Northern Brazil which has meant the Xingu people have faced a loss of access to water, food, housing, work and transportation, and the displacement of 20,000 people.
The UNDRIP and ILO Convention No. 169, specifically enshrine indigenous peoples’ right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use. An important element of the Declaration is that Indigenous Peoples should not be forcibly removed from their lands or territories, and if relocation is to occur, it shall not take place without their free, prior and informed consent, and with a just and fair compensation. Similar provision exist in ILO Convention No. 169.
“The Guiding Principles on Business and Human Rights affirm the independent corporate responsibility to respect indigenous people’s rights, as recognised in international human rights laws…The standards of a growing number of multi-stakeholder initiatives include respect for indigenous peoples’ rights, as affirmed under the United Nations Declaration on the Rights of Indigenous Peoples, and consequently require free, prior and informed consent prior to approving or undertaking an investment”. This obligation exists irrespective of a national legislation framework. Consultations should be carried out before undertaking or permitting any programmes for the exploration or exploitation of resources occurring to the lands or territories of Indigenous Peoples.
Guiding Principle 18 of the UN Guiding Principles on Business and Human Rights (UNGPs) states that:
“business enterprises should identify and assess any actual or potential adverse human rights impacts with which they may be involved either through their own activities or as a result of their business relationship. That process should: …
- b) involve meaningful consultation with potential affected groups and other relevant stakeholders, as appropriate to the size of the business enterprise and the nature and context of the operation.”
Commentary to UN Guiding Principle 12 further acknowledges that:
“enterprises should respect the human rights of individuals belonging to specific groups or populations that require particular attention, where they may have adverse human rights impacts on them, including the rights of indigenous people”
Various measures have been adopted at the international arena in order to guarantee the rights of Indigenous Peoples. The International Finance Corporation has developed in 2012 its Performance Standard 7: Indigenous People, which seeks to ensure that business activities minimise negative impacts, foster respect for human rights, dignity and culture of indigenous populations, and promote development benefits in culturally appropriate ways. Informed consultation and participation with IPs throughout the project process is a core requirement and may include Free, Prior and Informed Consent under certain circumstances. The Inter-American Court of Human Rights, while interpreting and applying the American Convention on Human Rights, has developed a strong jurisprudence on indigenous and tribal peoples’ rights, including their right to free, prior and informed consent on all projects that may have an impact on them. The OECD Guidelines for Multinational Enterprises states that enterprises should respect the human rights of individuals belonging to specific groups or populations, including Indigenous Peoples, where they may have adverse human rights impacts on them. A number of banks and financial institutions have adopted safeguarding policies on indigenous peoples, including the World Bank, the Asian Development Bank, and the Inter-American Development Bank, amongst others. Furthermore, the DIHR Due Diligence Checklist for Companies on indigenous peoples rights, available in English, Spanish and French, seeks to provide companies with operational guidance on how to ensure due diligence when operating in areas where projects may affect indigenous peoples.
States have also adopted legislation to guarantee the rights of Indigenous Peoples, and in particular consultative rights, or in certain cases, specifically Free, Prior and Informed Consent. Countries such as the Philippines, Colombia and Peru have incorporated strong consultative rights for Indigenous Peoples in their national legislation, while Australia, Bolivia, South Africa, South Sudan and Tanzania have also made progress by incorporating consultative protections for activities affecting the lands and territories of Indigenous Peoples. Norway’s constitution for example recognises the responsibility of the authorities of the State to create conditions enabling the Sami people to preserve and develop its language, culture and way of life. In Myanmar, a National Land Use Policy was adopted by parliament in 2016, which includes a chapter on Land Use Rights of Ethnic Nationalities, referring to customary land tenure and land-use mapping. The document also mentions FPIC as a means of addressing land monopolisation and speculation.
Multi-stakeholder initiatives also cover respect for FPIC. The global sugarcane platform Bonsucro, on its Guidance for the Protection Standard, Criterion1.2 Clear Title to Land and Water in accordance with National Practice and Law, requires that members demonstrate that when statutory, customary or use rights of land has been relinquished, the operator shall demonstrate that the decision was taken by free, prior and informed consent. Also, the Roundtable on Sustainable Biomaterials makes a reference on its Principles to Land Rights that Free, Prior, and Informed Consent shall form the basis for all negotiated agreements for any compensation, acquisition, or voluntary relinquishment of rights by land users or owners for operations.
Many companies have started to adopt policies, voluntary codes of practice and other benchmarks to address human rights including the rights of Indigenous People. Nestle’s Commitment on Land and Land Rights in Agricultural Supply Chains, for example, includes on its Responsible Sourcing Guideline for high risks commodities provisions mandating suppliers to ensure they have a zero tolerance for land grabs and that they seek free, prior and informed consent with regards to the rights of indigenous peoples. Asia Pulp Paper Groups’ Forest Conservation Policy recognises the obligation to obtain the free, prior and informed consent of indigenous peoples. Inmet Mining Corp. developed a policy to recognise indigenous peoples’ right to free, prior and informed consent to be applied to its Cobre Panama project where a number of indigenous families were to be relocated as a first step to developing on the largest underdeveloped copper deposits in the world.
Indigenous peoples are one of the 9 Major Groups associated with sustainable development processes. As the 2019 Global Sustainable Development Report highlights, the SDG processes can greatly benefit from indigenous peoples’ participation and knowledge regarding community resilience and adaptation as well as environmental protection. However, they are among the most marginalised groups in countries in which they live, they risk being among those left behind in SDG implementation.
Issues of particular importance to indigenous peoples are reflected across all the SDGs and given the inter-connectedness of all SDGs, the impact on indigenous peoples of efforts to achieve one SDG must be considered in the light of others – e.g., efforts to increase renewable energy availability (SDG 7) or to protect forests (SDG 15) must be considered in light of indigenous peoples’ rights to land and their food security (SDG 2). These include, but are by no means limited to, issues related to land.
- SDG 15 (life on land). This is due to the impact of business’ activity on the rights to lands and territories of indigenous peoples, and the recognised role that more secure land rights of indigenous peoples can contribute to better conservation of land and forests and environment.
- SDG targets 1.4 (equal rights to economic resources, as well as access to basic services, ownership and control over land and other forms of property) and 2.3 (agricultural productivity and incomes of small-scale food producers, in particular women, indigenous peoples, family farmers, pastoralists and fishers, including through secure and equal access to land).
Human rights due diligence can be applied to all business activities with indigenous peoples that are linked to relevant SDGs, using DIHR’s due diligence guidance for activities specifically affecting indigenous peoples.
1) No Poverty
2) Zero Hunger
15) Life On Land
What National Action Plans say on Indigenous peoples
The Belgian NAP makes no direct reference to indigenous peoples.
Pillar 1. The State duty to protect human rights
Strand 1: Training in the Field of Business and Human Rights [pages 31-32]
Action Point 1.4
The Ministry of Energy will:
Through the Division of Social Involvement and Dialogue, within the implementation framework of the Indigenous Chapter of the 2050 Energy Policy, perform the following actions:
- Develop training sessions in renewable energy for indigenous leaders with focus on business and human rights.
- Perform activities to transfer experiences and knowledge to companies, so that they have information available for the development of energy projects in indigenous contexts.
- Develop actions to train business enterprises about human rights and corporate activity, focusing on indigenous rights and cosmovision.
- Train indigenous peoples about business and human rights. This initiative will be performed in conjunction with the Indigenous Affairs Unit of the Ministry of Social Development, which will facilitate coordination between initiatives carried out by both institutions within the context of the Action Plan.
Action Point 1.5
The Ministry of Social Development will:
Through the Indigenous Affairs Coordination Unit, carry out a Training Plan including indigenous peoples related subjects for businesses operating in the North and South macro-zones, including the focus introduced by United Nations Guiding Principles on Business and Human Rights. Contents of these training sessions will include relevant international standards, which will be discussed with indigenous representatives and have the involvement of business enterprises. Through the Indigenous Affairs Coordination Unit, it will publish a Participatory Guide concerning Indigenous Rights and Cosmovision of Indigenous Peoples, allowing to advise and train business enterprises about these peoples and the respect for their rights. Train staff on the Guiding Principles, including professionals from the Division of Social Policies and the Division of Social Assessment and Investment.
Strand 2: Dialogue
Action Point 2.1 [page 34]
Through the Indigenous Affairs Coordination Unit of the Ministry of Social Development, opportunities for involvement and dialogue will be generated at a local level between business enterprises and indigenous peoples aimed at preparing a territorial development plan seeking to generate a dialogue at a local level involving municipalities, thus carrying out a participation exercise about what happens in a territory and how this is planned. This would consider the participation and planning demands regarding territorial matters of indigenous peoples submitted within the context of the Participatory Dialogues of this Plan, as well as what is set out in Convention 169, the national regulations connected with such Convention, and the national instruments of territorial planning.
Strand 3: Inclusion and Non-Discrimination
Action Point 3.2 [page 36]
The Ministry of Social Development will:
- Organise, through the Indigenous Affairs Coordination Unit, a Coordination Board including the participation of indigenous peoples and relevant organisations with the purpose of proposing non-discrimination and inclusion measures in the labour market. This Board will take into consideration the international standards set out in Covenant 169, as well as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the recommendations gathered from the citizens’ dialogues held within the framework of the National Action Plan about the subject.
- Prepare, through the Division of Social Policy of the Under-Secretariat of Social Evaluation, a statistical report about the socio-economic situation of risk groups including… indigenous peoples…based on the Socio-Economic Qualification (SEQ) including income generated by work, capital and pensions, contained in the Household Social Register, divided by territory (regional division). This has the purpose of having available information regarding vulnerable groups within certain territory.
Action Point 3.7 [page 39]
The Ministry of Energy will promote the respect of human rights of indigenous peoples concerning the development of energy projects. It will do this through the implementation of the indigenous chapter the energy policy in the long-term, developing consultation and participation processes pursuant to ILO Covenant 169, and drafting a guide for indigenous participation in the development of energy projects. Likewise, the Ministry will promote the development of a “gender and energy agenda” seeking to enhance the role of women in the development of a national energy industry, from strengthening their capacity and knowledge in energy subjects to developing startups linked to the industry, and promoting the participation of women in the design and implementation of the Energy Policy.
Strand 4: Transparency and Participation
Action Point 4.1 [pages 39-40]
The Ministry of Energy will:
- Encourage, within the framework of the Local Development Policy, the participation of communities in the different stages of the life-cycle of energy projects so that their interests may become known and be taken into consideration, as well as contributing to the general development of the localities receiving them. Diverse mechanisms will be promoted to facilitate participation (detailed in strand 2) and transparency in the processes carried out. Considering the above, an online Transparency Platform will be developed for communities to have access to the processes of dialogue that are taking or have taken place, the agreements reached and compliance, among other things.
- Include, within the framework of the Indigenous Chapter of the 2050 Energy Policy, in conjunction with the Ministry of Economy and the Indigenous Affairs Coordination Unit, business and human rights standards in the Indigenous Participation Guidance in the Development of Energy Projects.
- Promote, within the framework to implement the Indigenous Chapter of the 2050 Energy Policy, the right conditions for the social and technical viability of power generation projects, with total or partial participation in their ownership by the indigenous communities.
Strand 8: Legislation, Policies and Incentives
Action Point 8.2 [page 49]
The Ministry of Energy will identify, promote and design the necessary mechanisms to implement the local development policy concerning energy projects. Among other things, the policy includes measures to support the assessment of impacts on the human rights of communities, and mechanisms to resolve the disputes that may arise between communities and business enterprises, within the context of the development of energy projects.
Pillar 2: Corporate Responsibility to Respect Human Rights
Strand 1: Contextual issues: Development of texts allowing business enterprises to understand the local context and the risks of potential negative impacts on human rights
Action Point 1.5 [page 53]
The Ministry of Energy will keep updated the standard guide for participating in the development of energy projects, and will prepare a guide for indigenous participation in the development of energy projects. It will also prepare the guide for local development of the localities where such projects are settled, which will drive the actions of business enterprises and communities about the contribution to development that can be offered by these institutions.
Strand 2: Promotion of corporate due diligence in the field of human rights Action Point 2.2 [page 55]
The Ministry of Economy, Development and Tourism will:
Support the Ministry of Energy in the development of a Guide about the impact of projects on local communities, seeing to the integration of business and human rights standards into the development of projects within communities and, particularly, containing best practices about due diligence in human rights-related issues.
Pillar 3. Access to Remedy
Strand 2: State-Based Non-Judicial Mechanisms
Action Point 2.5 [pages 61-62]
Within the framework of the Local Development Policy of the Ministry of Energy, the following actions will be carried out:
- Promotion, in coordination with other relevant public services, and through multisectoral dialogue, the development and implementation of a grievance mechanism so that business enterprises and communities may forward to the authority their concerns about non-compliance of an agreement existing between the parties.
- Promotion of formal and permanent spaces for dialogue between business enterprises and communities, whereby potential impacts may become known and the relevant measures may be taken. For smooth operation of these spaces for dialogue, the public sector will promote the availability of a record of advisors and facilitators to be used by communities, and a Symmetry Fund allowing to finance such advisors or facilitators.
Action Point 2.6
Within the framework of the Energy Policy, the Local Development Policy and the Chapter on Indigenous Relevance of Energy 2050, the Ministry of Energy will promote the development of mechanisms for the resolution of disputes between communities and business enterprises within the context of the development of energy projects, will may consist in, inter alia, mediation, redress or other mechanisms that may be relevant
In the situation caused by Covid-19, violations have been denounced due to massive layoffs, the non-adoption of biosecurity measures for workers, public health effects on specially protected groups such as indigenous people, the worsening of violence in some sectors of the country and informality.
IV. POLICY DEFINITION
- Ethnic approach: it is a form of analysis and a guide of principles for the adoption and implementation of public policy with ethnic groups. The ethnic differential approach is developed as a participatory formulation and construction exercise between the state and ethnic organisations and authorities at the national and territorial levels.
VIII. FUNDAMENTAL PILLARS
i. Fundamental Pillar 1: The State’s obligation to protect human rights
Strand 5 [Eje nº 5]: Articulating spaces for social dialogue and effective participation
- The Ministry of Transport will implement strategies for the improvement of the road infrastructure of the country’s indigenous, Afro and peasant communities through support in the formulation and structuring of projects, training in sources of financing upon request and technical accompaniment in the territory to facilitate the prioritisation and rationalisation of projects.
- The National Infrastructure Agency (ANI) will strengthen participation scenarios for ethnic and non-ethnic communities in the framework of its infrastructure projects.
Pillar II baselines: Human rights as a moral and ethical obligation
Scope and content of the obligation to respect human rights
What human rights? [page 30]
These rights are fleshed out in a series of other specific instruments, such as the OECD Guidelines for Multinational Enterprises.
…As for the external impacts of a business’s operations, this might encompass forced land seizure and population displacement, the ban on requisitioning or destroying natural resources that are vital to a local community, and the ban on destroying cultural heritage.
Due diligence [page 34]
An effective due diligence mechanism should meet the following criteria:…
- Engage the public directly concerned, stakeholders in the community and vulnerable groups in the formation of the mechanism.
Public engagement can take many forms. First of all, this may entail consultations with those affected by businesses’ operations (holders of human rights) because these people are best placed to highlight the problems looming over them. Likewise, employees should be involved as they need to know how to deal with the knowledge they accrue in their work. Finally, public engagement may comprise external expert opinions, opposing views, etc.
Transparent consultation of matters of general interest [page 29]
If a business is preparing a major project that could be linked – even if only potentially – with human rights risks, open communication with all stakeholder groups is recommended. Negotiations should be guided by the following principles:
- They should take place sufficiently early on.
- The top management, or at least those with enough decision-making powers, should be involved.
- The form taken by the negotiations should reflect the seriousness of the risks, the scale of the project, and the addressees’ abilities and capacities (an online form, public meetings, personal visits).
- Plain language should be used in the negotiations. Complex legal or economic language may not be understood by the uninitiated and could be misinterpreted as an effort to conceal something.
If the direct participation of a particular group is impossible, communication with their representatives or with experts familiar with the situation is an option.
The Danish NAP does not make an explicit reference to Indigenous Peoples.
1. The State Obligation to Protect Human Rights
1.2 Activities in international organisations [page 14]
Finland will continue the dialogue related to the human rights impacts of business activities with the UN bodies for indigenous peoples and ensure that the effects of business activities on the realisation of the rights of indigenous peoples will be brought forward in the World Conference on Indigenous Peoples in autumn 2014.
I- Businesses’ Responsibility to Respect Human Rights
3. Risk Analysis and Impact Assessment
Actions to be Implemented [page 41]
Promote the completion and publication of voluntary impact assessments, ensuring that all appropriate stakeholders are included (if necessary, through the free, prior and informed consultation of populations), particularly rights holders for companies that are not required to complete project-specific impact assessments, and ensure these assessments are monitored.
There is no mention of indigenous peoples in the Business and Human Rights Chapter of the Georgian Human Rights NAP.
III. Federal Government expectations regarding corporate due diligence in respecting human rights
Core elements of due diligence in the field of human rights
Procedure for the identification of actual and potential adverse impacts on human rights [page 9]
The size of an enterprise, the sector to which it belongs and the nature of its business activity directly influences the risk that its operations will have an impact on human rights. The required depth and breadth of the risk assessment depends on these factors…
Contextual circumstances such as the political framework and the presence of vulnerable groups of people (indigenous populations, for instance) should be factored into the analysis.
1. The State Duty to Protect
1.1 Basic rules of economic policy
Protection within states’ own territory – challenges within Germany
The current situation [page 16]
The Federal Government is currently preparing for the incorporation of numerous international legal instruments into German law. The Federal Ministry of Labour and Social Affairs is planning the examination prior to ratification of …the Indigenous and Tribal Peoples Convention (No 169) as well as of the Optional Protocol of 2008 to the International Covenant on Economic, Social and Cultural Rights and the revised Social Charter.
Measures [page 20]
The Federal Government will also take specific action to step up its wide-ranging commitment to the protection of human rights defenders when applying the UN Guiding Principles. In the field of business and human rights, as elsewhere, development policy is about standing up for the rights of vulnerable groups, such as indigenous peoples or children and youth or persons with disabilities.
international Context and domestic Consultative Process [page 21]
Other international initiatives
In March 2016, the Council of Europe adopted a Recommendation to assist Member States in preventing and remedying human rights violations by business enterprises. The Recommendation elaborates on access to judicial remedy, drawing on Council of Europe expertise and legal standards and puts special emphasis on the additional protection needs of workers, children, indigenous people and human rights defenders. It also recommends a review of implementation of the Recommendation by the Member States within five years of its adoption, with the participation of relevant stakeholders.
The Italian NAP does not make an explicit reference to Indigenous Peoples.
Chapter 2. Action Plan
2. Areas of the NAP
(1) Cross-cutting areas
C. Human Rights Associated with the Development of New Technologies
(Existing framework/Measures taken ）
With respect to discrimination issues, including hate speech, initiatives to resolve discrimination, including on the Internet, are being promoted in accordance with the objective of laws, including the Act on the Promotion of Efforts to Eliminate Unfair Discriminatory Speech and Behavior against Persons Originating from Outside Japan (Act No. 68 of 2016), the Act on the Promotion of Elimination of Buraku Discrimination (Act No. 109 of 2016), and the Act on Promotion of Measures for Realization of a Society in which the Pride of the Ainu People is Respected (Act No. 16 of 2019).
E. Equality before the Law (Persons with Disabilities, Women, Persons of Diverse Sexual Orientation and Gender Identity, and Other Groups)
(Existing framework/Measures taken）
With respect to the Ainu indigenous people who inhabit areas around the northern part of the Japanese Archipelago, especially in Hokkaido, the Act on Promotion of Measures for Realization of a Society in Which the Pride of the Ainu People is Respected (Act No. 16 of 2019) prohibits discrimination on the grounds of Ainu identity.
(2) Measures of the Government as an Actor regarding State Duty to Protect Human Rights
B. Development Cooperation and Development Finance
(Existing framework/Measures taken）
The Development Cooperation Charter adopted by the Cabinet in 2015 promotes human security, including fundamental human rights, as one of the basic policies for development cooperation. In addition, the Charter requires that sufficient attention is being paid to the protection of fundamental human rights in recipient countries to ensure the appropriateness of development cooperation, and that efforts are being made to ensure appropriate operation. When engaging in development cooperation projects, internationally established human rights standards, including the international human rights treaties, have been respected. Particular attention has been paid to human rights of socially vulnerable groups, such as women, indigenous people, persons with disabilities, and minorities. Nevertheless, further efforts are required in this regard.
|CHAPTER TWO: SITUATIONAL ANALYSIS AND THEMATIC AREAS OF FOCUS
2.3 Land and Natural Resources [Page 12-14]
International human rights law guarantees against arbitrary deprivation of property and provides a standard of conduct to be followed in case of evictions. Furthermore, there are additional protections for indigenous people in recognising the unique importance, cultural and spiritual values that they attach to their lands, territories and natural resources. These guarantee land rights for indigenous people and provide protections against displacement from their lands. They also provide for consultation and consent to development projects. Several SDGs targets relate to land and natural resources.
The NAP consultations identified the following concerns related to land, natural resource development and business:
5. Cultural and historical barriers to access to land by women, minorities and marginalised groups such as indigenous persons. These barriers limit these groups’ participation in and decision-making power over land-related issues; […]
2.6 Labour [Page 12]
It is imperative that the labour market is regulated to ensure compliance with constitutional, legal and international standards. Several SDGs and ILO core conventions cover various aspects of working conditions including decent work and economic growth, reduction of inequality, quality education and gender equality. The SDG targets include: […] 2.3 (double the agricultural productivity and incomes of small- scale food producers, in particular […] indigenous peoples,[…] ); 4.5 (eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including […], indigenous peoples […]);
CHAPTER THREE: POLICY ACTIONS
3.3. Pillar 3: Access to Remedy
B) Non-State-based Grievance Mechanisms [Page 21]
The Government will:
CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 22]
To ensure that the measures proposed in this NAP are implemented, there shall be a NAP Steering Committee overseen by the Department of Justice and the Kenya National Commission on Human Rights. The Implementing Committee will consist of representatives from the following institutions:
7. Three (3) Civil Society Organizations Representatives of persons living with disabilities, women and indigenous persons
The Lithuanian NAP does not make an explicit reference to Indigenous Peoples.
Content from non-BHR specific chapters in the Human Rights NAP:
Strategic priority 1.6. Implement actions aimed at sensitization and communication in order to spread and promote a human rights culture
1.6.9. Make awareness and orientation campaigns on economic, cultural, social and environmental rights using accessible formats and in indigenous languages to promote their enforceability.
Strategic priority 3.1. Implement measures for the full exercise of human rights of indigenous and afromexican people and communities
3.1.5. Articulate interinstitutional actions aimed at guarantee the right to consultation and free and informed, culturally adequate and in good faith previous consent of indigenous and afromexican people and communities, in the implementation of measures and projects which are susceptible of affecting them.
The Dutch NAP does not make an explicit reference to Indigenous Peoples.
1. Global developments and CSR
1.1.Developing an international framework for CSR [page 13]
Measures to prevent deforestation and forest degradation can safeguard the climate and at the same time promote the rights of indigenous peoples and local communities.
2. The State Duty to Protect Human Rights
2.1 The State as legislator
The Minerals Act [page 19]
In Norway as in other countries, conflicts may arise between commercial activity and indigenous peoples’ rights. Protection of Sami rights is laid down in the Constitution and other legislation, and obligations towards the Sami people follow from international conventions, particularly Article 27 of the International Covenant on Civil and Political Rights and ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries. In Norway, Sami rights are also enshrined in special legislation and through consultation procedures between the public authorities and Sámediggi (the Sami Parliament). As part of its follow-up of ILO Convention 169, Norway is conducting a dialogue with ILO on how the convention is being implemented in Norwegian law, including in the area of mineral resources. In the Official Norwegian Report 2007:13 on legislation pertaining to the Sami, the Sami Rights Commission reviewed measures relating to mineral resources and in legislation that regulates mineral extraction. Some of the commission’s proposals were evaluated in connection with the preparatory work on the Minerals Act. The Act, which replaced five existing acts, entered into force on 1 January 2010. As part of the Government’s follow-up of the report from the Sami Rights Commission,13 the Ministry of Trade, Industry and Fisheries will evaluate proposals for amendments to the Minerals Act.
3. The Corporate responsibility to respect human rights
3.2 Responsible Business Conduct [pages 31-32]
The 13th principle clarifies what companies’ responsibility to respect human rights involves:
An enterprise may cause or contribute to adverse human rights impacts if for example …the living conditions of the local community that are directly affected by the company’s operations decline without prior explanation from or dialogue with the relevant parties, including the local authorities. Impacts on the climate and the environment resulting from the enterprise’s activities, for example through land use, exploitation of natural resources, greenhouse gas emissions or releases of hazardous substances, may also have adverse impacts on a broader range of human rights, such as minority and indigenous people’s rights or the right to life, health, food, water or adequate housing. If a company is responsible for such impacts, it is also responsible for addressing them.
Acquiring expertise for risk identification and assessment [page 33]
The 18th principle outlines procedures for risk management based on internal or external expertise and dialogue with stakeholders:
It may be necessary to conduct a dialogue on due diligence with stakeholders. This will give the company a better picture of which rights may be under pressure and what can be done to prevent potential misunderstandings or conflicts. Dialogue can help to clarify expectations and reduce conflict.
The Rights of Indigenous People [page 34]
Indigenous peoples have a right to be consulted on projects that will have an impact on land where they live and earn their livelihoods (for example reindeer husbandry). The most important international standards concerning indigenous rights and the right to be consulted are the United Nations Declaration on the Rights of Indigenous Peoples and ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries. In many countries, indigenous peoples are largely excluded from political, economic and cultural life, and indigenous groups have a lower score than other population groups on many standard-of-living indicators, for example health and education. Indigenous peoples are also particularly vulnerable to the impacts of climate change.
|CHAPTER I : PROCESS OF ELABORATING THE FIRST NATIONAL ACTION PLAN ON BUSINESS AND HUMAN RIGHTS
1.3. Stages of the elaboration process
First stage: call for stakeholders
It was developed from January to August 2019. It was characterized by the identification and rappro- chement of stakeholders from the State, companies, civil society, indigenous peoples, trade unions, international organizations, and international cooperation agencies. In this way, all sectors involved in the issue of business and human rights were brought together. In collaboration with them, the methodological proposal that would guide the NAP was developed and approved. This stage invol- ved the training of stakeholders on issues such as the Guiding Principles and other international standards, good business practices, and the rights of vulnerable groups. – page 23
It was considered a priority to incorporate the voice of rights holders and groups impacted or potentially negatively affected by corporate activities and, in general, of civil society organizations, indigenous peoples, and trade unions. – page 26
1.4. Stakeholders that participated in the process
The NAP preparation process involved 132 stakeholders from the State, companies, civil society, indigenous peoples, trade unions, international organizations, and international cooperation agen- 27 cies, all of which formed part of the Multi-Stakeholder Roundtable. – page 29
CHAPTER II: THE BUSINESS AND HUMAN RIGHTS SITUATION IN PERU
One of the most studied issues refers to the tense relationship between some business activities and the individual and collective rights of indigenous peoples. In addition to the above, there is a lack of evidence that shows the commitment of companies to the particular protection of the rights of this group, as well as due diligence mechanisms that take into account their particularities. (…)Guiding Principle 18 establishes that companies should “identify and assess the actual or potential negative consequences on human rights in which they may be involved either through their own activities or as a result of their business relationships” with the sectors concerned, which includes indigenous or native peoples, as well as human rights defenders. – page 36
CHAPTER III: DIAGNOSIS AND BASELINE: ACTION AREAS
3.1. General conclusions of the diagnosis and baseline
On the other hand, sectors such as civil society, trade unions, and indigenous peoples have also made contributions to the issue of business and human rights. While most of these are evidenced in the activities to incorporate the Guiding Principles and the RBC into the national political agenda, they have also brought up general international standards applicable so that the rest of the stakeholders consider them for the adoption of measures. – page 40
One of the fundamental objectives of this public policy is to have strengthened business, trade union, indigenous, and civil society institutions that coordinate with the State on an equal footing, as has been demonstrated throughout the NAP preparation stage. The achievement of this objective will allow this public management instrument to be viable and legitimate, and above all, that its imple- mentation efficiently serves the public purpose of building a country with sustainable development at the service of improving the quality of life of all people, especially the most vulnerable. – page 41
There are organizations of working children and adolescents that have a critical appraisal of the work, due to the precarious working conditions. However, the international standard establishes the need to raise the minimum age of working children and adolescents, as well as to monitor that those who are of the minimum working age do not perform hazardous work. It is also important to mention that the measures to be adopted require a special focus on the areas of informality (where this problem is specific to), as well as in rural areas and particularly in relation to indigenous or native peoples. – page 44
Indigenous peoples and prior consultation
The State has a considerable national and international regulatory framework, including the Constitution, Convention No. 169 on indigenous and tribal peoples in independent countries, Law No. 29785 on the right to prior consultation with indigenous or native peoples, Law No. 29735 regulating the use, preservation, development, recovery, promotion, and dissemination of the native languages of Peru, among others, on the rights of indigenous or native peoples, in general, and the implementation of prior consultation, in particular. However, the indigenous or native peoples show state weakness and the need to achieve greater effectiveness of this regulatory framework. Among the main rights to be protected, the aforementioned peoples identified land titling, institutional strengthening for effective prior consultation, attention to structural conditions linked to economic, social, cultural, and environmental rights (food sovereignty, indigenous institutions, and indigenous juris- diction, among others). There is also evidence of the need to incorporate the intercultural approach in an increasingly effective way in public management, constituting a process of adaptation of the different entities, at the regulatory, administrative, and civil service levels of the State, to attend in a pertinent manner to the cultural and social needs of the different ethnic-cultural groups of the country in the measures linked to business activities.
With respect to other matters related to indigenous or native peoples, business associations have made progress with respect to corporate due diligence on human rights, with a clear intercultural approach, such as mechanisms for complaints and social claims in accordance with the Guiding Principles, which provide for reporting on the rules of due diligence and respect for human rights to external stakeholders and disseminate it among their contractors. However, public policy does not provide sufficient information on compliance.
With respect to mechanisms for redressing the rights of indigenous peoples, judicial remedies are the most commonly used, although they are slow and ineffective. There are also administrative avenues used, but it is noted that they are not designed to address the integrity of the damages caused, especially those resulting from informal activities and the criminal environment. Although strategic litigation by indigenous peoples and civil society has been a more efficient form of access to redress, this mechanism has been limited. – page 48/49
Environmental Impact Assessment (EIA)
The State has assumed a set of international environmental obligations related to the EIA, which has resulted in internal regulations to strengthen public policy to protect the environment and related rights in the context of investment projects. Within the framework of the National Environmental Impact Assessment System, the competent public entities have made progress both in the production of common general guidelines and by type of project for the preparation of EIAs, as well as in the mechanisms to ensure an adequate quality of information for the socio-environmental baselines and the content of the EIAs. The Executive Branch has the challenge of articulating its various governing bodies in order to have ever greater legitimacy and trust on the part of indigenous peoples and other groups with respect to the fulfillment of its role of promoting, supervising, monitoring, and defending the human rights related to this function. In this task, it is essential to count on the active and adequate participation of indigenous peoples, other groups, and citizens in general. – page 49
The agro-export sector represents one of the country’s main economic activities, with palm oil, cacao, asparagus, sugar, and quinoa agroindustries standing out. In this regard, there is a considerable national and international regulatory framework regarding labor and environmental issues and the rights of indigenous peoples in the context of these activities, which could be strengthened in accordance with various international regulations (…)Regarding reparation mechanisms, domestic legislation provides for administrative and criminal sanctions for labor infractions and environmental crimes, respectively, but it is necessary to adopt public policy measures to overcome legal, procedural, and social barriers in their application, mainly for indigenous peoples, workers, and unions. – page 50
State and business commitment to develop it by guaranteeing energy security and the rights of the indigenous or native peoples living in the areas of influence of its projects. In addition to the inter- national framework, the State has national regulations for the protection of the rights of indigenous peoples in isolation and initial contact, as well as legislative advances in practices such as participatory environmental monitoring. – page 51
Table 8: NAP strategic guidelines and objectives, and alignment with the axes of the Peru Vision 2050
Strategic guideline No. 1: Promotion and dissemination of a culture of respect for human rights in the business environment in accordance with the framework of international standards of the guiding principles and other international instruments.
Objective 2: Organized civil society (members of civil society organizations, trade unions, and indigenous peoples) are aware of and promote the implementation of the guiding principles and other related international instruments in their activities.
8. Create and implement a permanent training program based on international standards on GP-RBC, from the Justice and Human Rights sector, with special emphasis on the specific needs of organized civil society, indigenous peoples, Afro-Peruvian people, trade unions, special protection groups, communities, and peasant patrols, and citizens in general: In order to guarantee a permanent state training and awareness-raising effort for the general public, organized civil society, the business sector, indigenous peoples, Afro-Peruvian people, trade unions, and groups in special protection situations, the MINJUSDH shall create and implement a training program on GP-RBC that addresses, in coordination with the institutions representing these sectors and other competent state entities, their particular needs: Training plan on GP-RBC for indigenous peoples and Afro-Peruvian people, with special emphasis on women (Action Indicator). – page 60
9. Guarantee the rights, especially the rights to equality and non- discrimination, of specially protected groups (LGBTI, the elderly, people with disabilities, women, migrants, Afro- Peruvians, indigenous peoples) in consumer relations: Special protection groups (LGBTI, elderly people, people with disabilities, women, migrants, Afro-Peruvians) require the
15. To create a coordination space made up of Executive Branch entities for the intersectoral coordination of the implementation, follow-up, monitoring, evaluation, and updating of the NAP. Likewise, continue with the articulation of the State, companies, unions, indigenous peoples, and organized civil society stakeholders, as well as international organizations
Action: Promote the rights and non- discrimination of the Afro-Peruvian people and the Andean and Amazonian indigenous peoples, and protect in cases of racism.
Background: To ensure close coordination between the Culture and Justice and Human Rights sectors in order to promote, together with regional and local governments, concrete and effective actions to promote, respect, and guarantee the human rights of Afro- Peruvian people, indigenous or native peoples, and timely defense interventions in cases of racism and racial discrimination. Likewise, the participation of the national representative organizations of these peoples.
Indicator: Strategy for the promotion of the rights of Afro-Peruvian people and Andean and Amazonian indigenous or native peoples, and protection in cases of racism (Action Indicator). – page 92
Objective No. 2: Technical assistance to companies for the observance of human rights in their business activities
Action: Produce, in coordination with the business sector, organized civil society, the competent state sector, indigenous peoples, and trade unions, specific guidelines for the business sector on the implementation of due diligence mechanisms for human rights defenders.
Background: In order to reflect the principles of the RBC and adapt them to specific business sectors, the MINJUSDH will produce a specific guide to implement due diligence mechanisms for the protection of human rights defenders. These documents will be elaborated with the stakeholders linked to the type of activity.
Indicator: Due diligence guide on human rights defenders prepared and publicly presented. – page 108
Action: To progressively create and implement a mechanism for follow- up, monitoring, and voluntary reporting of the corporate due diligence mechanisms implemented by trade unions and companies in the formal sector, with the participation of the business sector, civil society organizations, indigenous peoples, trade unions, and the competent state sector.
Background/Indicator: In order to follow up and monitor the implementation of due diligence mechanisms by the business sector, MINJUSDH will progressively create and implement a state mechanism to receive voluntary reports from the business sector reflecting progress in this task. This follow-up and monitoring mechanism will be formulated in coordination with the business sector, with the participation of the state, trade unions, indigenous or native peoples, and civil society sectors; furthermore, the reports will be received voluntarily, at the times and with the contents contemplated in its respective regulations. – page 119
Strategic guideline No. 5: Design and strengthening of mechanisms to ensure that those affected by human rights violations have access to judicial, administrative, legislative, or other means of redress.
Objective 3: Create and strengthen mechanisms at the operational level by companies to redress human rights violations in the corporate sphere.
Action: Create and implement a follow-up and monitoring mechanism for corporate due diligence related to reparations, which are implemented by trade unions and companies in the formal sector, with the participation of the business sector, civil society organizations, indigenous peoples, Andean and Amazonian peoples, trade unions and the relevant state sector: Businesses should diligently manage complaints and/or claims received from people with disabilities and senior citizens who consider themselves affected by the adverse impacts of business activities, ensuring due process of their complaints and implementing sanctions and redress mechanisms, as appropriate. This action, with emphasis on reparation mechanisms, is implemented within the framework of Action 87.
Indicator: Follow-up and monitoring mechanism for the business sector due diligence mechanisms. – page 125
Action: Produce, in coordination with the business sector, organized civil society, the competent state sector, indigenous or native peoples, Andean and Amazonian peoples, and trade unions, specific guidelines for the business sector for the implementation of due diligence mechanisms that provide comprehensive reparation.
Background: In order to reflect the principles of PR-CER, and adapted to specific business sectors, MINJUSDH will produce specific guides for the groups of species and issues prioritized in the diagnosis and baseline and others to be prioritized, in order to implement due diligence mechanisms.
Indicator: Preparation and public presentation of the guides. – page 125
The Polish NAPs do not make an explicit reference to Indigenous Peoples.
The Slovenian NAP makes no reference to indigenous peoples.
C. Current Status
1. Domestic Status [page 3]
- Increased discussion of corporate social responsibility as a result of human rights issues such as … forced migration of indigenous people in the management process of multinational corporations.
Guiding Principle 1
… it should be noted that Spain is a party to ILO Convention No. 169 on Indigenous Peoples.
Guiding Principle 21
Companies and vulnerable sectors will be informed about ILO Convention 169 on Indigenous and Tribal Peoples (1989), and the United Nations Declaration on the Rights of Indigenous Peoples (2007). This awareness-raising action will demonstrate the benefits that the respect for human rights can have for companies, as well as highlight examples of good practices.
The Swedish NAP does not make an explicit reference to Indigenous peoples.
2 National Action Plan on Business and Human Rights 2020-23
2.2 Pillar 2: the corporate responsibility to respect human rights
2.2.1 Foundational principles
Guiding Principles 11 to 15
…. The responsibility of business enterprises to respect human rights refers to internationally recognised human rights. … Depending on the circumstances, business enterprises must also observe additional standards concerning particularly vulnerable population groups, including agreements protecting … indigenous people …
III. The State duty to protect human rights
B. Actions taken
- Promoting human rights through government procurement operations (page 8)
‘Taiwan has implemented regulations that include such measures, including […]”Indigenous Peoples Employment Rights Protection Act.” All these acts prohibit discrimination, encourage green purchasing, and promote environmental protection.’
This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, The state duty to protect, UNGP6, Actions taken (page 45).
IV. The corporate responsibility to respect human rights
C. Actions planned
- Advocate for disclosure of non-financial information (pages 14-15)
‘In addition to studying the feasibility of expanding the range of businesses subject to a compulsory requirement to prepare CSR reports, the Taiwan government will also advocate for disclosure by businesses of non-financial information (related issues will include important environmental, social, and governance (ESG) topics — such as […] indigenous land rights […] – all of which are matters of concern to stakeholders).’
This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, The state duty to protect, UNGP3, Actions planned (page 43).
Appendix 1: Concrete actions taken by Taiwan to fulfill the state obligation to protect
- Government procurement (page 24-25)
Article 12 of the “Indigenous Peoples Employment Rights Protection Act” stipulates as follow:
“I. Companies winning bids according to the Government Procurement Act with more than one hundred staff shall hire indigenous people during the term of contract performance, with the total number of indigenous people accounting for no less than one percent (1%) of the total number of working staff thereof.
- The indigenous people hired according to the provision in the previous section shall receive pre-job training before commencement of their work; training fees shall be subsidized by the government; the conditions, duration and amount of subsidies shall be determined by the competent authority for labor issues in the central government.
III. In the event that the winning bidder fails to hire enough indigenous people based on the requirement set out in paragraph I above, it shall make a cash payment to the employment fund of the Aboriginal Comprehensive Development Fund.”’
- Other legislative action and measures (page 29)
[…] ‘Article 8 of the “Public Welfare Lottery Issue Act” provides as follows: “Disabled persons who are capable of working, indigenous persons, and single-parent families with low income shall be given first priority for lottery retailer licenses. Retailers which have more than five employees shall hire at least one disabled person who is capable of working, one indigenous person, or one head of a single-parent family with low income.”’
3. The core content of the National Action Plan on Business and Human Rights
3.2 Action plan for community, land, natural resources and the environment
3.2.3 Action Plan (2019–2022)
Pillar 1: State duties in protecting (Protect)
|Responsible agencies||Time-frame (2019–2022)||Indicators (wide frame)||Compliance with National Strategy/ SDGs/UNGPs|
|6.||Community capacity development||Enhancing career, household income, welfare arrangements, and community development, including strengthening of Highland communities along the border and developing sufficient economy villages||– Ministry of Social Development and Human Security
– Ministry of Interior (Department of Community Development)
|2019–2022||– Highland people received potential development and good quality of life
– Happiness of people in 52,680 villages
|– National Strategy for National Security
– National Strategy for National Competitiveness Enhancement
– SDG 11, 13, 14 and 15
– UNGPs Articles 1, 3, 4, 5 and 7
CHAPTER FOUR: STRATEGIES AND INTERVENTIONS STRATEGIES
OBJECTIVE 3: To promote meaningful and effective participation and respect for consent by relevant stakeholders in business operations.
4.3.1 Promoting FPIC for communities in all business operations
- Review and enact laws guaranteeing FPIC (Free, Prior and Informed Consent), particularly ensuring meaningful consultations with vulnerable groups, such as women, persons with disabilities, indigenous persons, ethnic minorities and persons living with HIV and AIDS.
CHAPTER FIVE: INSTITUTIONAL FRAMEWORK
5.4 Business entities
ii. Ensure free prior and informed consent in acquisition of land and other properties for business operations.
The strategic implementation framework in the 1.0 Appendices includes:
- Objective 3.0 (Appendices) Improvement in the business entities’ duty to ensure Free Prior and Informed Consent in investment and other business undertakings
Budgeted outputs in Annex I include:
- Review and enact laws guaranteeing FPIC (Objective 3.0)
- Developing guidelines and policies regarding land acquisition, compensation and resettlement of the affected communities (Objective 3.0)
- Strengthening effective and meaningful community participation in business operations (Objective 3.0)
- Strengthen social protection interventions for the vulnerable groups affected by business operations. (Objective 4.0)
The UK 2013 NAP
2. The State Duty to Protect Human Rights
The existing UK legal and policy framework
New actions planned
The Government will do the following to reinforce its implementation of its commitments under Pillar 1 of the UNGPs:
(vi) Promote new project activity on raising awareness and tackling the negative impacts of business activity, including on the human rights of groups like indigenous peoples…,by tasking our diplomatic missions in countries where these are concerns.
(xi) Instruct our embassies and high commissions to support human rights defenders working on issues related to business and human rights in line with EU Guidelines on human rights defenders.
3. UK companies’ responsibility to respect human rights
Government expectations of business
Consult people who may potentially be affected at all stages of project design and implementation, in a manner that ensures free and informed participation and takes into account language and other potential barriers to effective engagement, paying particular attention to indigenous peoples and other groups…
The UK 2016 Updated NAP
2. The State Duty to Protect Human Rights
The existing UK legal and policy framework
Government commitments [page 11]
(vi) Consider new project activity on raising awareness and tackling the negative impacts of business activity, including on the human rights of groups like indigenous peoples…by tasking our diplomatic missions in countries where these are concerns.
(viii) Continue to work through our embassies and high commissions to support human rights defenders working on issues related to business and human rights in line with EU Guidelines on human rights defenders.
3. Government expectations of business [page 14]
- The UNGPs guide the approach UK companies should take to respect human rights wherever they operate. The key principles of this approach are to:
consult people who may potentially be affected at all stages of project design and implementation, in a manner that ensures free and informed participation and takes into account language and other potential barriers to effective engagement, paying particular attention to indigenous peoples…
4.Access to remedy for human rights abuses resulting from business activity
Case study- Supporting human rights defenders in Colombia, Mexico and Brazil [page 22]
The UK supported International Service for Human Rights to deliver an intensive training and advocacy programme for human rights defenders working on issues relating to business and human rights in Colombia, Mexico and Brazil. ISHR also created a toolkit to equip human rights defenders to engage with and influence business and supported an advocacy mission to the Inter-American Commission on Human Rights for the purpose of briefing diplomats and decision makers on the situation of human rights defenders working on issues of business and human rights in Brazil, Colombia and Mexico and obtaining recommendations in that regard.
Purpose of the NAP [page 5]
The NAP focuses on a broad range of issues including but not limited to:…human rights, the rights of indigenous peoples…
The National Action Plan
Facilitating RBC by Companies
Outcome 3.3: Capacity Building and Technical Support to Promote Enabling Environments
Stakeholder Engagement in Extractive Industries in East Africa [page 20]: State is funding a program to promote RBC in East Africa. The goal of the program is to strengthen civil society’s capacity to meaningfully participate in business and human rights initiatives in East Africa and to reduce conflict for communities in the operations of extractive companies. Implementing department or agency: State