11th Session of the UN Forum on Business and Human Rights
Nov. 28-30, 2023
UN Headquarters, Geneva Switzerland
Advancing Mandatory Human Rights Due diligence: South perspectives
Joan Carling, Indigenous Peoples Rights International
My presentation is from the perspective of indigenous peoples as rights holders and asstewards of lands and resources. Our experience of colonization and assimilation providesthe context of continuing conflicts between indigenous peoples with States and business;and the urgent need for a mandatory human rights due diligence incorporating specificallythe recognition, respect and protection of individual and collective rights of indigenous peoples in business activities.
The mandatory conduct of human rights due diligence in business activities is an opportunity to reverse the trend of worsening violations of indigenous peoples’ rights. It is also an opportunity to advance the invaluable contributions of indigenous peoples in protecting the planet. Indigenous peoples welcome the initiatives of states and business in developing their policies and regulations for mandatory human rights due diligence which should cover transnational corporations, and domestic and state companies. Our experiences as indigenous peoples in both north and south involve the outright disregard and systematic violations of our rights by business, including domestic and state companies, and the lack of access to justice.
The initiatives of human rights for mandatory human rights diligence regulations should include legal recognition of the collective rights of indigenous peoples as affirmed by the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). This means legally recognizing the rights of indigenous peoples to lands, territories and resources; cultural integrity; and right to self-determination as the overall legal framework and business regulations for its activities affecting indigenous peoples.
Operationally, it should ensure clear guidelines for the proper conduct of the Free, Prior and Informed Consent (FPIC) of affected indigenous peoples as the minimum standard and as the social license for business to operate in indigenous territories or to conduct activities that would affect us. Further, this should not be an exercise of tick-in-the-box but rather a substantive process that is inclusive, transparent, culturally sensitive, and most importantly, ensuring the full respect and protection of our rights before, during and post business activities.
Reflecting on my experiences in engaging with state and business, mandatory human rights due diligence for business activities needs to be able to change the behavior of both states and business in engaging with indigenous peoples and recognizing us primarily as rights holders—not simply as victims or even as obstructionists.
This means transforming the engagement with indigenous peoples from lack of respect to one of good faith and goodwill approach so that the protection of our rights in both process and substance is ensured.
It is important to draw lessons from past behaviors of companies such as: not providing information on potential adverse impacts of business activities, making empty promises of employment and social services, bribery of local leaders, manipulating results of consultations and collective decision-making process, setting up NGOs to divide affected communities, imposing unfair compensation, threats and intimidation for leaders to give the consent,
among others, and even filing criminal cases against those defending their rights and the environment.
Too often, companies complain of project delays and additional costs due to the need to conduct consultations as part of a human right’s due diligence process. However, for indigenous peoples, what is at stake in the proper conduct of mandatory human rights due diligence is the protection of our livelihoods, our food security, protection of the environment, our distinct ways life in harmony with nature, and the collective survival of the present and the future generation.
Thus, human rights due diligence needs to account for these values and impacts on indigenous peoples.
With these experiences, it is important for indigenous peoples to have meaningful participation and inclusion in developing mandatory human rights due diligence for business activities. Indigenous peoples as rights holders need to be able to present and discuss in good faith how our rights can be respected and protected in business activities, for example, by developing standards and guidelines on FPIC for business activities—bearing in mind, “nothing about us without us”.
While we recognize good intentions in developing human rights due diligence, it is through our direct and meaningful participation that our human rights concerns can be fully addressed and protected, considering our circumstances and conditions. At the same time, our meaningful engagement in the process will also result to mutual understanding and finding ways and means to address key challenges in the respect and recognition of our rights, including the proper implementation of FPIC.
Transforming the behavior of business and states through the conduct of human rights due diligence with goodwill and good faith would prevent conflicts with indigenous peoples, prevent lang grabbing and unsustainable resource extraction. This would also facilitate sustainable use and management of resources, including food security; incorporate the views of indigenous peoples in project designs; allow constructive dialogues in addressing the concerns of indigenous peoples, including the specific concerns of indigenous women, youth the elderly and indigenous peoples with disabilities; the respect for our independent decisionmaking process; and in establishing partnerships with indigenous peoples with equitable benefit-sharing agreements that can facilitate social equity. This will also facilitate a mutually respectful process in upholding the rights and dignity of indigenous peoples.
Finally, the policies and guidelines for mandatory human rights due diligence is insufficient if there are no effective accountability mechanisms for business and states that are accessible for indigenous peoples on the ground. This is where the “rubber hits the road” in terms of putting into action the commitments of business and states in implementing the UNGP to uphold the rights of indigenous peoples and end impunity and criminalization.
Likewise, independent monitoring mechanisms for the conduct of human rights due diligence with the meaningful participation of indigenous peoples is necessary and should be fully supported by states and business. Further, we also need tackle broader systemic changes to enable an equal playing field for rights holders to exercise our individual and collective rights in the face of the political and economic power of states and business in order achieve social justice and equity which is consistent with human rights protection in business activities. These are part of the larger realities of indigenous peoples in transforming the legacy of colonization, forced assimilation, and systemic discrimination.
To conclude, I wish to share with you the statement of one of our leaders whose village was devastated by mining. He said:
“I am an old man now and my people have worked all our lives in taking care of our forest that has sustained us and our ancestors. We are protecting this forest for our future generations. However, a big man came and told us to leave because they are given the permit to mine our village for coal. In the consultations held, we did not agree to this, and we were told by the government that we do not have any choice but to leave. My son led the fencing of our land to prevent the entry of mining. He was arrested and put in jail because the mining company accused him of trespassing. The military came and forced us to relocate. The company is now earning millions from their mining operation while we live in destitute and hunger. I feel like we have lost our soul and we have failed the next generation.”
I hope we can reflect on this reality on the lives of millions of indigenous peoples across the world, and to work together to transform this towards the realization of our rights and advance social justice and equity for all.
Thank you.
The mandatory conduct of human rights due diligence in business activities is an opportunity to reverse the trend of worsening violations of indigenous peoples’ rights. It is also an opportunity to advance the invaluable contributions of indigenous peoples in protecting the planet. Indigenous peoples welcome the initiatives of states and business in developing their policies and regulations for mandatory human rights due diligence which should cover transnational corporations, and domestic and state companies. Our experiences as indigenous peoples in both north and south involve the outright disregard and systematic violations of our rights by business, including domestic and state companies, and the lack of access to justice.
The initiatives of human rights for mandatory human rights diligence regulations should include legal recognition of the collective rights of indigenous peoples as affirmed by the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). This means legally recognizing the rights of indigenous peoples to lands, territories and resources; cultural integrity; and right to self-determination as the overall legal framework and business regulations for its activities affecting indigenous peoples.
Operationally, it should ensure clear guidelines for the proper conduct of the Free, Prior and Informed Consent (FPIC) of affected indigenous peoples as the minimum standard and as the social license for business to operate in indigenous territories or to conduct activities that would affect us. Further, this should not be an exercise of tick-in-the-box but rather a substantive process that is inclusive, transparent, culturally sensitive, and most importantly, ensuring the full respect and protection of our rights before, during and post business activities.
Reflecting on my experiences in engaging with state and business, mandatory human rights due diligence for business activities needs to be able to change the behavior of both states and business in engaging with indigenous peoples and recognizing us primarily as rights holders—not simply as victims or even as obstructionists.
This means transforming the engagement with indigenous peoples from lack of respect to one of good faith and goodwill approach so that the protection of our rights in both process and substance is ensured.
It is important to draw lessons from past behaviors of companies such as: not providing information on potential adverse impacts of business activities, making empty promises of employment and social services, bribery of local leaders, manipulating results of consultations and collective decision-making process, setting up NGOs to divide affected communities, imposing unfair compensation, threats and intimidation for leaders to give the consent,
among others, and even filing criminal cases against those defending their rights and the environment.
Too often, companies complain of project delays and additional costs due to the need to conduct consultations as part of a human right’s due diligence process. However, for indigenous peoples, what is at stake in the proper conduct of mandatory human rights due diligence is the protection of our livelihoods, our food security, protection of the environment, our distinct ways life in harmony with nature, and the collective survival of the present and the future generation.
Thus, human rights due diligence needs to account for these values and impacts on indigenous peoples.
With these experiences, it is important for indigenous peoples to have meaningful participation and inclusion in developing mandatory human rights due diligence for business activities. Indigenous peoples as rights holders need to be able to present and discuss in good faith how our rights can be respected and protected in business activities, for example, by developing standards and guidelines on FPIC for business activities—bearing in mind, “nothing about us without us”.
While we recognize good intentions in developing human rights due diligence, it is through our direct and meaningful participation that our human rights concerns can be fully addressed and protected, considering our circumstances and conditions. At the same time, our meaningful engagement in the process will also result to mutual understanding and finding ways and means to address key challenges in the respect and recognition of our rights, including the proper implementation of FPIC.
Transforming the behavior of business and states through the conduct of human rights due diligence with goodwill and good faith would prevent conflicts with indigenous peoples, prevent lang grabbing and unsustainable resource extraction. This would also facilitate sustainable use and management of resources, including food security; incorporate the views of indigenous peoples in project designs; allow constructive dialogues in addressing the concerns of indigenous peoples, including the specific concerns of indigenous women, youth the elderly and indigenous peoples with disabilities; the respect for our independent decisionmaking process; and in establishing partnerships with indigenous peoples with equitable benefit-sharing agreements that can facilitate social equity. This will also facilitate a mutually respectful process in upholding the rights and dignity of indigenous peoples.
Finally, the policies and guidelines for mandatory human rights due diligence is insufficient if there are no effective accountability mechanisms for business and states that are accessible for indigenous peoples on the ground. This is where the “rubber hits the road” in terms of putting into action the commitments of business and states in implementing the UNGP to uphold the rights of indigenous peoples and end impunity and criminalization.
Likewise, independent monitoring mechanisms for the conduct of human rights due diligence with the meaningful participation of indigenous peoples is necessary and should be fully supported by states and business. Further, we also need tackle broader systemic changes to enable an equal playing field for rights holders to exercise our individual and collective rights in the face of the political and economic power of states and business in order achieve social justice and equity which is consistent with human rights protection in business activities. These are part of the larger realities of indigenous peoples in transforming the legacy of colonization, forced assimilation, and systemic discrimination.
To conclude, I wish to share with you the statement of one of our leaders whose village was devastated by mining. He said:
“I am an old man now and my people have worked all our lives in taking care of our forest that has sustained us and our ancestors. We are protecting this forest for our future generations. However, a big man came and told us to leave because they are given the permit to mine our village for coal. In the consultations held, we did not agree to this, and we were told by the government that we do not have any choice but to leave. My son led the fencing of our land to prevent the entry of mining. He was arrested and put in jail because the mining company accused him of trespassing. The military came and forced us to relocate. The company is now earning millions from their mining operation while we live in destitute and hunger. I feel like we have lost our soul and we have failed the next generation.”
I hope we can reflect on this reality on the lives of millions of indigenous peoples across the world, and to work together to transform this towards the realization of our rights and advance social justice and equity for all.
Thank you.
