There is a lot to do to implement the United Nations Guiding Principles on Business and Human Rights in the field. As Indigenous Peoples are seriously impacted by business operations all over the world -especially regarding our territories, resources, and right to self-determination- it will be crucial to engage meaningfully with States and companies. This was pointed out by indigenous representatives during the online event “Indigenous Peoples’ rights in the context of business: experiences and the road ahead”.
This event, organized by IPRI, IWGIA and The Christensen Fund- was developed in the context of the 21st session of the United Nations Permanent Forum on Indigenous Issues -whose theme this year is Indigenous peoples, business, autonomy, and the human rights principles of due diligence including free, prior, and informed consent.
The Saami activist Anne Nourgam, in her last side-event as Chair of the United Nations Permanent Forum on Indigenous Issues (UNPFII), recognized that corporations have played a significant role in undermining the rights of Indigenous Peoples. Despite some gains in recent decades -including recognition of indigenous rights in laws and even in national Constitutions, the adoption of UNDRIP, and the establishment of the Permanent Forum and of a UN special rapporteur for Indigenous Peoples-, when it comes to actual respect for Indigenous Peoples’ rights, “it is business as usual”.
Since the implementation of the United Nations Guiding Principles (UNGP) on Business and Human Rights, said Ms. Nourgam, there have been some achievements in companies adopting policies. But “a policy is only as good as its implementation”, and Indigenous Peoples continue to experiment gross violations of their human rights through forced displacement, criminalization, and killings. Remembering that the change goes bottom-up, Anne Nourgam called on Indigenous Peoples to continue to be drivers of this change.
During the event, four cases of business operations in indigenous territories were developed. Jillie Karl, an Isnag young woman from the Philippines, recounted how four hydropower dam projects are being authorized in their traditional lands despite the strong opposition of the people and the lack of free, prior, and informed consent (FPIC). The corporation launched a strategy of peak and bribe, dividing the communities and causing altercations during a questionable FPIC process that didn’t respect the due diligence principles.
“For business communities, these projects mean profit. For the State, they are renewable energy sources; but for us Indigenous Peoples, they mean the destruction of our biodiversity, our rich culture and traditions, our sacred grounds, and our indigenous systems and practices”, summarized Ms. Karl. “What we want is a just, inclusive, and equitable development with the utmost respect to human rights and indigenous rights. We reiterate: no consent, no entry”.
From Mexico, José May and Doroteo Hau Kuk -members of the Board of Kanan Ts’ono’ot, a Mayan organization of Yucatan- reported the struggle against a pig megafarm. Homun, their community, is located in a reserve with the biggest repository of fresh water in Yucatan. As the government gave permission to the project, people started to organize and carried out a consultation. Everyone said “No” to the megafarm, but authorities “are colluded with business. The government institutions are not doing the work they are supposed to, so we need to defend what is ours”. The Mayan activists insisted that they want the government to respect the community’s decision taken in the consultation. Due to an ongoing judicial process, the megafarm is closed for the moment.
From Indonesia, Norman Jiwan spoke about oil palm companies taking indigenous territories in Sebalos Hamlet. There, indigenous communities live under threat and fear. Among the 18 identified adverse effects of these projects, there are land grabbing, criminalization, extinction of wildlife, gender injustice, abuses, and violations of rights.
Here, the Government is part of the actors abusing Indigenous Peoples because it gives concessions and subsidizes oil palm companies, informed Mr. Jiwan. Meanwhile, important companies whose countries are part of the OCDE are being supplied with oil from these plantations. One of the calls in this case, apart from States and companies to respect and fulfill their responsibilities, is for business partners to stop buying oil palm from the company. Norman Jiwan also insisted that is urgent to adopt binding instruments to regulate the activities of corporations.
In his turn, Pavel Sulyandziga told how the Indigenous People from Taimyr Dolgan-Nenets district, in Russia, have faced Nornickel, one of the biggest Russian and England companies, a seller of metals, and also one of the biggest polluters of the world. In May 2020, a spill caused an ecological disaster in a river that is part of indigenous territories. While the people attempted to find a voice to inform, these attempts were blocked. The indigenous representatives managed to start negotiations with business partners of Nornickel, including Elon Musk, and to create a support network for their rights. The company accepted to start negotiations, but they didn’t reach an agreement not even in the most basic terms of international standards.
For Mr. Sulyandziga, the company sees the negotiations more as a PR strategy: they have paid compensations, but their policy hasn’t changed. They put pressure on indigenous representatives, and, with the Russian invasion of Ukraine, the government is attacking activists and IP leaders that stand up against the company.
In the case of India, Dinseh Murmu narrated how the companies come to their spaces to buy their resources with false promises, while the government gives the permissions without looking carefully. Mr. Murmu highlighted that there are many good laws that protect Indigenous Peoples’ rights, but they are not effectively implemented. “We want to protect our mother earth; this is why we protest against these decisions”, he insisted. The indigenous defender informed that the companies are not creating employment with good compensation and are not concerned about the environment. What they really do, he says, is to exploit and damage resources, and the adverse impacts are bigger than the benefits.
Fernanda Hopenhaym, the vice-chair of the United Nations Working Group on Business and Human Rights, recognized persistent patterns in the cases that were exposed. Above all, the lack of respect for FPIC for self-determination, as well as pollution, criminalization, and persecution against land defenders. She said that this is a priority theme for the Group, so several objectives have been set for the next decade to improve the protection of Indigenous Peoples.
Ms. Hopenhaym pointed out that there is a lot to do to achieve the implementation of the UNGP, to stop the double standards implemented by the companies, and to implement mandatory measures for companies and states to comply with their obligations and give access to remediations. In this way, the Working Group has possibilities to keep pushing in this way: Thematic reports, Amicus Curiae, and visits to countries and affected communities.
Francisco Cali-Tzay, the UN Special Rapporteur on the Rights of Indigenous Peoples, informed that the violation of rights of Indigenous Peoples as a result of the development of not-consulted economic projects in their ancestral lands is a central theme of this mandate. Most of the communications sent by the Rapporteur to States are regarding violations of the right to land, territory, and resources, and the lack of free, prior, and informed consent.
After talking about how the response of States to Covid 19 reinforced dispossession and authoritarian measures, Cali-Tzay said that whenever an economic trade does not conform to the indigenous idea of development, it violates the right of Indigenous Peoples to self-determination in the sense of freely deciding their economic priorities following their worldview. The Special Rapporteur remembered the people that he can carry out several activities, for instance, sending communications to States concerning ongoing human rights violations, Special Procedures can intervene with States but also with other actors as private entities. He called to send information about their struggles and remarked that his office can also intervene with Amicus Curiae in judicial cases concerning human rights and businesses.
Joan Carling, Executive Director of IPRI, informed that this organization developed a briefing paper on Indigenous Peoples, Human Rights and Business Operations, containing the achievements in the implementation of UNGPs and the gaps and how they can be addressed. And since criminalization is dominant in relation to business operations, IPRI has discussed with partners and Indigenous leaders of the three regions how the Roadmap of Indigenous Peoples for the second decade of UNGP can be.
The draft of this Roadmap relies on three elements. The first one is capacity building on international instruments -one of them is the UNGP - and interlearning exchanges. The second one is related to defense and advocacy for developing strategies and instruments to respond to ongoing violations of rights and to ensure justice and compliance with human rights obligations of States and companies. Two examples of this would be the engagement of Indigenous Peoples in the Mandatory human rights’ due diligence law in the supply chain of the European Union and the binding treaty on transnational corporations to respect Human Rights. The third pillar is strengthening networks of collaboration and building alliances to develop our own systems of protection, solidarity, and collaboration to prevent further attacks and seek remedy and justice. This Roadmap has synergies with the Roadmap of the Working Group, particularly in relation to increasing participation and respect for FPIC by States and businesses and the importance of monitoring business compliance with due diligence.
Casey Box, Global Strategy Director of The Christensen Fund, set out two actions that his organization is undertaking. First, to actively look to every investment that they make does not go against their mission of upholding the UNDRIP, and second, to start investing in indigenous businesses. He insisted that companies must recognize and respect the rights of Indigenous Peoples, including explicitly requirements for free, prior, and informed consent. In the case of philanthropy, donors must administer more flexible support to protect peoples' rights from corporations and to support legitimate indigenous leaderships.
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