Category Archives: Business & Human Rights

FPIC and the right to self-determination: report from a workshop in Geneva

There is a growing consensus that extractive industry activities, such as mining or oil extraction, affecting indigenous territories should not be carried out without their Free, Prior and Informed Consent. The affected community must receive all information relevant for their decision and must be freely able to give or withold their consent. The procedure for negotiating consent must be in accordance with the community’s customary law. This is a consequence of the right of indigenous peoples to self-determination, as articulated in the 2007 UN Declaration on the Rights of Indigenous Peoples.

In some countries, FPIC has been a legal requirement for years, for instance it has been required by the Philippines Indigenous Peoples Rights Act since 1997. However, legal texts and corporate practices often have little to do with the spirit of FPIC, reducing it to a mere box-ticking exercise. What the reality looks like, and what it should look like, is the theme of a project ENIP has undertaken in a GIZ- sponsored project. As part of the project experts, including indigenous peoples from countries such as Peru, Colombia, the Philippines and Malaysia, came together in Geneva in November 2018 to discuss these issues.

FPIC protocols asserting indigenous rights

Outside of national laws or guidelines indigenous peoples have been been increasingly developing and devising their own FPIC protocols as a means to defend their rights. These protocols describe their customary decision-making practices which should be used in FPIC negotiations. By providing clarity on decision-making processes they enable states and businesses to better protect and respect the rights of indigenous peoples. Many protocols are “living documents”, and vary greatly in their level of detail. They often reflect the predominantly oral cultures they emerge from.

FPIC as a binding principle

At the international level the state duty to obtain FPIC is enshrined inter alia in the UN Declaration on the Rights of Indigenous Peoples, the International Labor Organization’s Convention 169 and standards such as the World Bank IFC Performance Standard 7. It also increasingly features in codes of conduct by industry associations, such as those by the International Council on Mining and Metals. Most Latin American countries, including all the ones that presented workshop cases, have signed ILO Convention 169 and have thus committed to realizing the right to FPIC. But often what is promised and reality diverge widely.

Exchange of experiences in the workshop

Under the project, a workshop was held before the 7th UN Forum on Business and Human Rights in Geneva on 24 November 2018, attended by representatives of various indigenous organisations and peoples from Latin America and Asia. The workshop reviewed the subject of FPIC protocols, exploring the content of some key protocols and how they worked in practice. The overall goal was, through a shared understanding of the cases presented, to identify how FPIC protocols works, how they could be improved and identify how to better networking between different peoples and organisations working on this topic. After an introduction to the project by Dr Cathal Doyle of Middlesex University, four case studies were presented.

Realizing FPIC in a violent Colombia

Hector Jaime Vinasco and Viviane Weitzner shared the experiences of the Embera Chami people in Colombia. Living in a mountain region with rich gold deposits, the Embera Chami have many rights on paper, which are often disregarded in practice. The biggest problem is the continuing armed conflict, which has given Colombia one of the highest rates of internally displaced persons in the world. As in so many other places in Colombia, the community are caught between the violence of right-wing paramilitaries and left-wing guerillas. Partly as a result of a desire to access their natural resources, including gold, the people are being subjected to wide-spread harassment and extra-judicial killings. Viviane Weitzner pointed out that although it is officially a post-conflict situation, a de facto state of war persists, which is obviously a huge obstacle to the implementation of FPIC protocols.

Yet desite this, a Constitutional Court decision has formally reaffirmed the community’s right to internal autonomy. As a result the community are currently developing autonomous regulations for mining activities within their territory, are working to limit urbanisation and have officially declared their territory GMO free. They have developed an advanced FPIC protocol for projects which would impact them, and have created an ‘indigenous guard’ to patrol their territory monitoring against unauthorised incursions.

Dams and mines resisted in Brazil

Bel Juana and Biviany Astrid Rojas Garzon from Brazil presented via Skype the protocol developed by the Juruna people living in Mato Grosso del Sur in Northern Brazil. This FPIC protocol was developed after companies repeatedly disregarded their right to be consulted. In particular, the long struggle around the Belo Monte Dam, which in 2016 became operation despite worldwide protests and court decisions, has moved the Juruna to make explicit their own decision-making rules. Currently, the Juruna are affected by the gold mining company Belo Sun. However, following a decision by a federal court, the project was terminated and the license revoked until the company complies with the indigenous laws found in the Juruna Protocol.

It is not yet clear what the election of the right-wing politician Bolsonaro as President of Brazil will mean for this case. His remarks condemning indigenous rights before the election cause concern.

Establishment of ICCAs in Malaysia

Gordon John Thomas, working with PACOS based in Sabah, Malaysia, talked about community practices, customary law and spirituality. In Sabah, traditional knowledge is usually passed on orally, which is why it can be difficult to convey this knowledge to outsiders. As a result indigenous communities is frequently not included in decisions affecting them. Currently, there are plans to establish Indigenous and Community Conserved Areas (ICCAs), which contain protocols explaining to outsiders indigenous governance over the natural. It is hoped this will improve the situation of the communities.

Autonomy of the Wampis Nation in Peru

Grimaldo Sanchez and Tami Okamoto presented the situation of the Wampis nation in Peru. The indigenous Wampis communities have established an autonomous territorial government there to protect themselves against their rights, including the right to FPIC, being violated by companies and the government. The background is that Peru, as a signatory state to ILO Convention 169, has had a consultation law since 1994. In reality though it has limited the scope of the consultation so that no genuine indigenous participation is possible. While they expressly identify as Peruvian citizens, they place great importance in asserting complete sovereignty over their own territory. The Wampis provide an excellent lesson in how to achieve, and govern, their own indigenous territory, although they are in the early stages of creating an FPIC protocol to deal with outsiders.

The presentations were followed by an exchange on the different experiences and the challenges indigenous peoples face, as well as the transferability of the experiences of one people to the situation of other peoples .

Again and again the question came up as to whether and how FPIC is even possible in a stuation of armed conflict, as in Colombia and the Philippines. Windel Bolinget of the Cordillera Peoples Alliance considers a secure, free, democratic environment to be essential for developing and applying protocols.

He said: “So in our case, in developing or practicing our FPIC-protocols […] we have learned that if the state is undemocratic, a tyrant or totalitarian we can not expect that there will be an […] environment for us to practice our free prior informed consent, much less than recognation of our right for ancestral lands. And the government is undemocratic. So that means it’s up to the people to all organize and strengthen the people’s movement to be able to engage the strength.”- Windel Bolinget.

Participants agreed that there must be an end to the militarization of indigenous territories and of criminalization of indigenous human rights defenders. Within a dictatorial regime, indigenous peoples are unable to exercise their self-determination.

It was not all gloom though. Much progress has been made, and there was agreement that protocols are an important tool for building consensus in the communities regarding traditions and customary law as well as for improving the implementation of FPIC in practice. Although more work more needs to be done, it is clear that FPIC protocols are making a big difference to indigenous communities being able to assert their rights.

Indigenous leaders from threatened tropical forests to launch tour in Europe; will challenge region’s deadly trade in ubiquitous palm oil

Between 27 April and 4 May 2016, indigenous representatives and community leaders from tropical forest countries in Asia, Africa and South America will tour Brussels, The Netherlands, Germany and the UK to raise concerns with high-level policy and decision-makers about palm oil supply chains and the impact they are having on their lands, forests and communities.  Continue reading Indigenous leaders from threatened tropical forests to launch tour in Europe; will challenge region’s deadly trade in ubiquitous palm oil

New book on Business & Human Rights: Indigenous Peoples’ Experiences with Access to Remedy

Business and Human Rights Access to Remedy

The book Doyle C. (ed.) Business and Human Rights: Indigenous Peoples’ Experiences with Access to Remedy. Case studies from Africa, Asia and Latin America (Chiang Mai, Madrid, Copenhagen: AIPP, Almáciga, IWGIA, 2015)  is the product of a collaboration of two ENIP member organizations – Almáciga and the International Work Group for Indigenous Affairs (IWGIA) – with Asia Indigenous Peoples Pact (AIPP).  All three organizations work closely with indigenous peoples in Asia, Africa and Latin America. The book addresses cases from each of these continents, examining the experiences of indigenous peoples with access to remedy when their human rights are affected by corporate activities. By drawing from these experiences it seeks to inform the actions of corporate and State actors in relation their business and human rights obligations to ensure that indigenous peoples have access to effective remedy.

The book is edited by ENIP member Cathal  M Doyle and contains a foreword by Pavel Sulyandziga, member of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises. It includes contextual and case study chapters addressing the experiences of indigenous peoples with access to remedy in the context of corporate activities in Asia, Africa and Latin America. The chapters are written by Asia Indigenous Peoples Pact (AIPP), Dr. Dalee Sambo Dorough, Dr. Cathal M Doyle, Mikel Berraondo Lopez and the Fuerza de Mujeres Wayuu, Shankar Gopalakrishnan, Elifuraha Laltaika, Yun Mane, Delphine Raynal, and Kanyinke Sena.

Download the book as a PDF file 

New EU report by Julian Burger on Indigenous peoples, extractive industries and human rights

Julian Burger EU report on extractives - FrontpageThe European Union has published a new report by indigenous rights expert Julian Burger of the University of Essex, entitled “Indigenous Peoples, Extractive Industries and Human Right”.

The report provides an overview of relevant policy fields and recommends that the European Parliament re-affirm its commitment to protecting and promoting the rights of indigenous peoples as contained in the Declaration on the Rights of Indigenous Peoples. It calls for a specific recognition of free, prior and informed consent as an obligation for extractive industries engaging in activities that may impact indigenous peoples. It notes that serious and unacceptable human rights violations continue to be associated with the extractive industries in their dealings with indigenous peoples and considers that such abuses are likely to continue given the more invasive methods of extraction required to respond to global demand for commodities.

The paper welcomes the advances made by parts of the extractive industry sector to address the human rights, social and environmental issues arising from their contacts with indigenous peoples. It also considers that a goal at the European level should be a legally binding regime including sanctions where appropriate. This would ensure a level playing field among all extractive industry companies and prevent companies with serious commitments to indigenous peoples’ rights being put at a disadvantage with companies that do not have those commitments.

The paper also notes that the European Union (EU) in its trade and investment policies with outside partner countries may inadvertently set standards or impose restrictions that result in undermining the human rights of indigenous peoples. In this respect, further research on these contradictions would be helpful so that they can be brought to the attention of policy-makers with a view to making the necessary changes. The paper notes that the EU includes indigenous peoples as a cross-cutting part of its development, human rights and democracy programmes, and recommends that this area be strengthened and that further specific attention be given to challenges arising from the presence of extractive industries on indigenous peoples’ lands.

ENIP launches study on UN Guiding Principles

On Thursday the 11th of July in a side event at the Expert Mechanism on the Rights of Indigenous Peoples, ENIP, together with CAOI and  AIPP, launched a new study on Indigenous Peoples rights and the UN Guiding Principles. The study, authored by Johannes Rohr and José Aylwin and supported by the German Ministry for Technical Cooperation and Development, interprets the guiding principles as they pertain to indigenous peoples’ rights and offers real life examples of indigenous peoples’ attempts to assert their rights in the context of business operations in their territories.

EMRIP 7th session side event

 

The side event was facilitated by IWGIA‘s director Lola Garcia-Alix and panelists consisted of Pavel Sulyandziga (UN Working Group on Business and Human Rights); Vicky Tauli-Corpuz (UN Special Rapporteur on the rights of indigenous peoples); Chief Wilton Littlechild (UN Expert Mechanism on the Rights of Indigenous Peoples); Luis Vittor (Coordinadora Andina de Organizaciones Indígenas, CAOI) and Cathal Doyle on behalf of ENIP.

The event focused on the work of the UN Working Group on the issue of Human Rights and Transnational Corporations and other Business Enterprises and the activities at the UN Forum on Business and Human Rights in relation to promoting indigenous peoples’ rights in the context of business operations impacting on them. It also addressed the Human Rights Council resolution in relation to the elaboration of a binding instrument on transnational corporations and other business enterprises, which all panelists welcomed.

Chief Littlechild, who has participated as a panelist at the plenary and closing sessions of UN Forum, described the side event as a historic occasion and emphasized the importance of viewing the Guiding Principles through an indigenous lens and of ensuring further cooperation between EMRIP and the Working Group as well as ensuring the EMRIP guidance informs the work of the intergovernmental working group. This was particularly important given the extent of business impacts on indigenous peoples and the lack of effective remedies.

Pavel Sulyandziga, who has been instrumental in promoting indigenous rights within the Working Group, pointed out that indigenous peoples’ rights had been recognized as a priority area by the Working Group, which will participate in the World Conference on Indigenous Peoples in September.

Vicky Tauli-Corpuz echoed the view of Chief Littlechild and thanked Pavel for his contribution to promoting indigenous rights within the UN Working Group and Forum. She noted the major challenge of ensuring respect for indigenous peoples’ rights in the context of business operations given the power imbalances between corporations and indigenous peoples and indicated her intention to focus on the indigenous peoples’ collective economic, social and cultural rights.

Luis Vittor pointed to the fact that the situation of indigenous peoples impacted by business operations is very similar across the world. He also noted the issues raised in 2009 Manila Declaration in relation to the extractive industry’s impact on indigenous peoples’ rights and highlighted the potential role of the UN Guiding Principles and a future binding instrument in realizing the rights recognized in the UN Declaration on the Rights of Indigenous Peoples.

Cathal Doyle addressed indigenous participation to date at the UN Forum (see Cathal Doyle: Indigenous Peoples Issues & Participation at the UN Forum on Business & Human Rights) and noted that the process to implement the Guiding Principles and the process to elaborate an international legally binding instrument should be regarded as mutually reinforcing. In this regard, the important thing for indigenous peoples is to ensure that both processes guarantee recognition and respect for their rights, as this was not a given in either process.

Interventions from the floor addressed the lack of access to justice and effective remedies available to indigenous peoples at the national level, with examples of specific case studies provided from India, Kenya and the Philippines. They pointed to the need for greater respect for indigenous customary institutions and legal systems, effective implementation of national laws in relation to business in a manner consistent with the UN Declaration on Indigenous Peoples Rights and genuine respect of the requirement for free prior and informed consent in accordance with the right to self-determination.

Report: Indigenous Peoples’ Issues & Participation at UN Forum on Business and Human Rights

Indigenous Peoples’ Issues & Participation at the UN Forum on Business and Human Rights: Progress to date and Potential for the F uture

This paper provides an overview of indigenous peoples’ participation at the UN Forum on Business and Human Rights. It addresses progress to date in relation to indigenous peoples’ issues at the first two sessions of the Forum and the potential role which it can play in the future in promoting respect for indigenous peoples’ rights in the context of corporate activities, in particular extractive industry activities, in their territories.

Author: Cathal Doyle, University of Middlesex, June 2014