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.
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.
“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.