Indigenous Peoples Rights and the Role of Free Prior and Informed Consent

8 April 2014 Santa Cruz de la Sierra, Bolivia

About the UN Global Compact

United Nations corporate responsibility initiative 8000+ business participants Vision: A sustainable and inclusive global economy which delivers lasting benefits to people, communities, and markets.

Guiding Principles on Business and Human Rights

Endorsed by the UN Human Rights Council in June 2011 United Nations Protect, Respect, Remedy Framework: State Duty to Protect Human Rights Corporate Responsibility to Respect Human Rights Access to Remedy

Global Compacts human rights and labour principles

Relationship to the Guiding Principles In addition to reinforcing the minimum requirement to respect human rights (same as in the Guiding Principles), the Global Compact encourages business to explore opportunities to support human rights through additional voluntary actions that contribute to sustainable development (e.g., core business, strategic social investment, public policy advocacy, and partnerships).

Rights of Indigenous Peoples

Substantive Rights: Procedural Rights: Consultation Free Prior and Informed Consent (see also Good Practice Note)

Self-Determination Collective Rights Rights to lands, territories and resources Economic, social and cultural rights Equality and Non-discrimination

Why seek to obtain Free Prior and Informed Consent?

Peaceful, sustainable development Legal

Meet international legal obligations

Operational Risk
Risk of work being stopped

International Law

UN Declaration on the Rights of Indigenous People ILO Convention 169

Regional Jurisprudence
The Inter-American Court of Human Rights interpreted this in 2007 to require that governments obtain the FPIC of indigenous and tribal peoples before undertaking development projects with significant impacts. Saramaka People v. Suriname, Judgment, IACHR, Series C. No. 172 (28 Nov. 2007).

The African Commission on Human Rights is of the view that any development or investment projects that would have a major impact within the Endorois territory, the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions.
Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, 2003

Domestic Laws - Examples

Laws
Bolivia National Law 3760 The Philippine Indigenous Peoples Rights Act 1997 Aotearoa-New Zealands Te Ture Whenua Maori Act 1993

Jurisprudence
Constitutional Court of Colombia Supreme Court of Canada
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010; Taku River Tlingit First Nation v. British Columbia, [2004] SCC 74; Haida Nation v. British Columbia (Minister of Forests) [2004] SCC 73.

Domestic Law - Example

The Colombian Constitutional Court, held that the information or notification that is given to the indigenous community in connection with a project of exploration or exploitation of natural resources does not have the same value as consultation. It is necessary that formulas for concerted action or agreement with the community are put forward, and, finally, that the community declares, through their authorized representatives, either their consent or their dissatisfaction in relation with the project, and the way in which their ethnic, cultural, social, and economic identity is affected.
Constitutional Court, Ruling SU-039/97, Proponent Magistrate, Antonio Barrera Carbonel

Role of Companies

Growing expectations Lenders:

International Finance Corporation Equator Banks European Bank of Reconstruction and Development and the Inter-American Development Bank

Industry Standards:
International Council on Mining and Metals Roundtable on Sustainable Palm Oil Forest Stewardship Council, etc.

What: Clarification of Terminology

Consultation
undertaken, in good faith and in a form appropriate to the circumstances Consultation and participation are crucial components of a consent process Most national law calls for consultation

Social license (Knowing)

A belief that the community is on board with the project

Consent (Showing)
A documented, demonstrable social license to operate, obtained through processes agreed upon with the indigenous peoples

Who?

Accordance with indigenous peoples customary laws and practices. Does not mean one-person veto Indigenous peoples should specify which representative institutions are entitled to express consent on behalf of the affected peoples or communities.

How
Free
no coercion, intimidation or manipulation. Role of security

Prior
Before authorization or commencement of activities Before significant impacts? (IACHR)

Informed
Positive and negative impacts Appropriate medium Consider jointly developing indicators or carrying out joint assessments

Consent
Agree on a process Follow the process and document every step

Business Reference Guide to UN Declaration on Rights of Indigenous Peoples - Overview

Objectives Increase understanding among business of the rights of indigenous peoples Provide practical guidance for business to respect and support indigenous peoples rights, including examples.

Structure: Part 1: Key Business Actions elaborates on consultation and FPIC, and builds on the Guiding Principles Protect Respect Remedy Framework Part 2: UN Declaration Rights is structured around the rights in the UN Declaration to reaffirm and promote understanding of this instrument

Practical Supplement to UN DRIP Business Guide

The Practical Supplement to the Guide features actual business examples, which illustrate ways businesses are acting with respect for indigenous peoples rights. The Global Compact will be receiving additional case studies on an ongoing basis for inclusion in the Practical Supplement. Send submissions to undrip@unglobalcompact.org

UN DRIP Guide: Consultation Process 2012-2013

Consultation draft of Guide shared with thousands of people around the globe for UN comment, DRIP Guide Consultation 2012-2013 public including targeted outreach to Process Global Compact business participants, Local Networks, UN partners, indigenous peoples, and other experts.
Public Consultation and Comment Establish and collaborate with Expert Group to assist in final revisions Design 10 Dec 2012 27 Feb 9 April 17 April 30 April 23 May

1 June

6 Sept

17 Oct 2013

3-4 Dec 2013

Exposure Draft of Business Guide to UN DRIP released

Consultation webinars

Consultation Meeting at PFII (NYC)

End of Public Comment period

Revision Draft shared all who submitted comments during the public period

Expert Group call to review final revision

Launch of Business Reference Guide to UN DRIP UN Human Rights and Business Forum (Geneva)

Thank You

Michelle Lau Email: lau@unglobalcompact.org Global Compact Website on Rights of Indigenous Peoples: http://www.unglobalcompact.org/Issues/human_rights/indige nous_peoples_rights.html