Inputs of Indigenous Peoples to the OECD MNE Guidelines review

News and Features 13 May 2023 Hits: 1150

Context

Indigenous Peoples' held a consultation process in February 20 for Asia and the Pacific, Africa, Europe, and the Americas. The main issues regarding MNEs affecting indigenous peoples were discussed. Additionally, indigenous peoples' representatives reviewed a proposed text for the MNE Guidelines Chapter IV. on Human Rights, specifically for paragraph 47. The proposed text by indigenous peoples aims to address the main gaps in the proposed text. Moreover, the modified text in para 47 of the human rights chapter, while being the minimum that could be accepted in relation to Indigenous Peoples’ rights, does not provide sufficient guidance to companies, in particular in relation to the identification of Indigenous Peoples, recognition of land rights, seeking and obtaining FPIC, the conduct of indigenous rights impact assessments and the need for benefit sharing agreement. Therefore an additional para. 54 was included to provide specific guidance according to the international human rights of indigenous peoples.

Indigenous peoples have stressed the OECD to commit to elaborating additional and dedicated guidance on indigenous peoples’ rights, including the operationalization of FPIC, via a structured and mutually acceptable processes with indigenous peoples.

Proposed text

The proposed text in the format proposed by the OECD WBRBC formatting (tracking edits from the original guidelines) for paragraph 47 and the additional paragraph 54 is as follows:

Chapter IV. Human Rights (text to illustrate potential edits is in bold, italics and underline for new text and strike-out for deleted text)

Para 47 - 46.47. Enterprises can have an impact on virtually the entire spectrum of internationally recognised human rights. In practice, some human rights may be at greater risk of adverse impacts than others in particular industries or contexts, and therefore will be the focus of heightened attention. However, situations may change, so all rights should be the subject of periodic review. Depending on circumstances, enterprises may need to consider additional standards. For instance, 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. As needed, enterprises should take additional steps to assess and address adverse impacts on individuals who may be at heightened risk due to their membership in marginalised marginalisation or vulnerable vulnerability, individually or as members of certain groups or populations, including Indigenous Peoples. This may include people belonging to indigenous groups. International law sets out specific principles and rights in this regard related to self-determination, land, territories, resources, culture and to participation in decisions that may impact on these principles and rights. The OECD Due Diligence Guidance on Meaningful Stakeholder Engagement in the Extractive Sector provides further practical guidance in this regard, including in relation to Free, Prior and Informed Consent (FPIC). In this regard connection, United Nations instruments have the The United Nations has elaborated further on the rights of indigenous peoples; (UN Declaration on the Rights of Indigenous Peoples),); persons belonging to national or ethnic, religious and linguistic minorities; women; children; persons with disabilities; and migrant workers and their families. Moreover, in situations of armed conflict enterprises should respect the standards of international humanitarian law, which can help enterprises avoid the risks of causing or contributing to adverse impacts when operating in such difficult environments. In the context of armed conflict or heightened risk of gross abuses, enterprises should conduct enhanced due diligence to avoid involvement in adverse impacts including violations of international humanitarian law.

Para. 54. Enterprises should identify any potentially impacted Indigenous Peoples and analyse their rights to own, use, develop and control affected lands, territories and resources, irrespective of whether the people or their rights have been formally recognized under national law. Where Indigenous Peoples’ rights may potentially be restricted or denied, enterprises shall ensure Indigenous Peoples’ effective participation in decision-making, through their own representative institutions in order to obtain their Free, Prior and Informed Consent (FPIC) in accordance with their laws, protocols, customs and traditions. Impact assessments should span all affected rights and be participatory, publicly available, respect indigenous knowledge and address cumulative effects of proposed activities. No relocation can take place, and no cultural, intellectual, or spiritual property can be taken, without Indigenous Peoples’ FPIC, and no activities shall take place in the territories of Indigenous Peoples in voluntary isolation. Where granted, FPIC should be formalized in contractual agreements that: recognize territorial, self-governance and cultural rights; address and protect against adverse impacts; ensure compensation for harms caused and guarantee fair and equitable benefit sharing, and recognize the role of Indigenous Peoples’ legal systems, customs in dispute resolution. FPIC should be maintained throughout the project or initiative lifecycle, and be subject to independent verification, with evidence provided to investors and other stakeholders that agreements are fully implemented and have continued support from the concerned peoples.

Finally, the Indigenous Peoples Rights International and the Forest Peoples Programme undertook a broader review of the guidelines. The document below provides the details where language related to indigenous peoples' rights should be addressed to ensure consistency with treaty body jurisprudence, the UN Declaration on the Rights of Indigenous Peoples, among other international standards.