Business and Human Rights Part XIX--Issues: Indigenous People

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme.  The Ruminations Series in 2009 produced a month long series of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope was that, built up on each other, the series would provide a matrix of thoughts that together might lead the reader in new directions. 

For 2010, this site introduces a new series--Business and Human Rights.  The series takes as its starting point the issues and questions raised by John Ruggie, the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, in a global online forum 

The U.N. "Protect, Respect, Remedy" framework is made up of three pillars: the State duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights, which means to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial.  The forum is currently focused on the corporate responsibility to respect human rights, the second pillar of the framework. The forum is divided into sections, each of which contains multiple topics with space for discussion and comment.

New Online Forum for U.N. Business and Human Rights Mandate, United Nations Press Release, New York and Geneva, Dec. 1, 2009. Each of the Essays will consider one of the topics raised in the online consultation.  My hope is to help generate discussion and to encourage further discussion of the issues within the framework fo the consultation  framework. 

Part XIX: Human Rights Due Diligence--Issues: Indigenous People.

The issue of indigenous people's rights has become a matter of increasing interest to the international community.  In 2007, the United Nations adopted a Declaration on the Rights of Indigenous Peoples.  The focus of the Declaration was on an international mediation of the rights of indigenous peoples in the context of the political states of which they were (whether they liked it or not) a part.  Thus, for example, article 1 of the Declaration provides that "Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law."  Articles 6-8 also guarantee basic political rights to individuals who may claim membership in indigenous communities.  The Declaration appears to preserve an equality of rights among all peoples within a political states regardless of status as indigenous (article 2) while preserving to indigenous peoples a right to self determination (article 3), yet that right might appear to be limited to the power of such communities to preserve an autonomous status within states (article 4).  Ultimately, and unlike other distinct communities within a state, indigenous people are given a dynamic right to choose, form time to time, to choose assimilation into the greater community or separation (the limits of which are ambiguous)  therefrom.  Thus article 5 provides: "Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State."  And thus the protection against forced assimilation in Article 8 of the Declaration.  Indigenous people are also accorded collective rights superior to those of other organized communities within states, with respect to the preservation of their culture and institutions (Arts. 14-15), the management of information for consumption by internal audiences and  projection to others (art. 16), and the right to preserve autonomous political institutions in the defense of what may be perceived to be matters affecting communal interest (arts. 18-20, 34).  

Within this framework it is not surprising that the relationship between indigenous peoples and modern states, as well as between such communities and economic enterprises, remains deeply dynamic.  The SRSG has suggested the importance of First pillar considerations as the foundation for ordering human rights

States are responsible for upholding and implementing their national and international obligations to indigenous peoples.  Where company activities may affect the rights of indigenous communities, companies also need to become aware of and understand the particular position of indigenous peoples and their rights in order to ensure that they meet their responsibility to respect human rights.

Issues that tend to arise where business and indigenous peoples meet are land use and ownership; cultural identity and development; the desire for sustainable livelihoods; consultation and the concept of "free, prior and informed consent" (FPIC).

United Nations Special Representative of the Secretary-General on Business & Human Rights, Issues: Indigenous People.  The SRSG's reference to "free, prior and informed consent" nods to Article 32 of the Declaration, which imposes on states a similar set of obligations:

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

United Nations Declaration on the Rights of Indigenous Peoples. The question then arises: to what extent do te international obligations of states toward indigenous people extend directly to economic enterprises in their own right under the Second Pillar?  The answer that the OECD has given, at least in the United Kingdom, in an interpretation of the OECD's Guidelines for Multinational Enterprises, has been that corporations owe an independent obligation to indigenous communities.  More importantly, the OECD has taken the position that such independent obligation is to be interpreted under international standards rather than under the national standards.  Thus, even where states transpose their international obligations toward indigenous peoples into domestic law, that transposition will not be dspositive with respect to the separate obligations of corporations involved with those indigenous communities under international standards.  See, Initial Assessment by the UK National Contact Point for the OECD Guidelines for Multinational Enterprises: Survival International and Vedanta Resources plc, March 27, 2009(focusing on standing issues for bringing such claims) and Final Statement by the UK National Contact Point for the OECD Guidelines for Multinational Enterprises: Complaint from Survival International against Vedanta Resources plc, 25 Sept. 2009 (focusing on the obligations owed to indigenous communities beyond national law).  For a discussion, see, Larry Catá Backer, Part II: The OECD, Vedanta, & the Indian Supreme Court—Polycentricity, Transnational Corporate Governance and John Ruggie’s Protect/Respect Framework, Law at the End of the Day, Nov. 3, 2009.

If economic enterprises may have an independent obligation to indigenous communities under international law, it is likely that corporations ought to be sensitive to issues touched on in the United Nations Declaration on the Rights of Indigenous Peoples. More immediately,corporations might profit from guidance contained in the Akwé Kon Guidelines (2004), produced by the Secretariat of the Convention on Biological Diversity. The Guidelines represent a effort by the state parties ot the CBD  "to develop, in cooperation with indigenous and local communities, guidelines for the conduct of cultural, environmental and social impact assessments regarding such developments." Akwé Kon Guidelines, supra, at 1 (Hamdallah Zedan Executive Secretary, Forward).

The Voluntary Guidelines were named by a Mohawk term meaning "everything in creation", so as to emphasize the holistic nature of this instrument. Indeed, the guidelines are intended to provide a collaborative framework ensuring the full involvement of indigenous and local communities in the assessment of cultural, environmental and social concerns and interests of indigenous and local communities of proposed developments. Moreover, guidance is provided on how to take into account traditional knowledge, innovations and practices as part of the impact-assessment processes and promote the use of appropriate technologies.

Id., at 1-2.  For purposes of application of the Akwé Kon Guidelines, invoking parties prepare a cultural heritage assessment (Id., paras. 12-34), environmental impact assessments (Id., Paras. 35-38), and social impact assessments (id., paras. 39-51).

"Cultural heritage impact assessment is concerned with the likely impacts of a proposed development on the physical manifestations of a community's cultural heritage and is frequently subject to national heritage laws. A cultural heritage impact assessment will need to take into account, as the circumstances warrant, international, national and local heritage values."  Akwé Kon, supra, at 13 (Para. 25).  Environmental impact assessments focus on the specific development proposal.  "The direct impacts of the development proposal on local biodiversity at the ecosystem, species and genetic levels should be assessed, and particularly in terms of those components of biological diversity that the affected indigenous or local community and its members rely upon for their livelihood, well-being, and other needs."  Id., at para. 36.  Social impact assessments are to "take into account gen- der and demographic factors, housing and accommodation, employment, infrastructure and services, income and asset distribution, traditional systems and means of production, as well as educational needs, technical skills and financial implications."  (id., para. 39).  Several of the baseline considerations for social impact assessment echo protections identified in the U.N. Declaration on the Rights of Indigenous Peoples.  

The focus of the assessments are on the prior informed consent of the taffected populations.  Id., para. 52.

Prior informed consent corresponding to various phases of the impact assessment process should consider the rights, knowledge, innovations and practices of indige- nous and local communities; the use of appropriate language and process; the allocation of sufficient time and the provision of accurate, factual and legally correct information.

Akwé Kon Guidelines (2004), supra at para. 53.  Interestingly, the Akwé Kon Guidelines speak to conformity with national legal requirements, but only "to national legislation consistent with international obligations."  Id., para. 57.  It does not specify how participants are to make a legitimate determination of such consistency, or to defend against national police actions taken against them on the basis of inconsistent national law. Also importantly is the need for transparency in the process.  Id., at para. 62.  Application of the Akwé Kon Guidelines, already suggested within the OECD voluntary governance framework, might be usefully integrated into corporate compliance with Second Pillar responsibilities to respect Human Rights.